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H*3546 Session 110 (1993-1994)
H*3546(Rat #0276, Act #0181) General Bill, By Sheheen, Boan, R.S. Corning,
B.H. Harwell, J.H. Hodges, Jennings, P.H. Thomas and Wilkins
Similar(H 3611)
A Bill to amend Title 1, Code of Laws of South Carolina, 1976, relating to
administration of government by adding Chapter 30, so as to establish within
the Executive Branch of State Government nineteen departments and to establish
within each department certain divisions composed of specified state agencies,
to provide for the organization, governance, duties, functions, and procedures
of the various departments and divisions, and for the manner of selection,
terms, and removal of department heads, board and commission members, and
other officials, to provide that certain other agencies other agencies or
departments of state government shall perform their duties and functions as a
part of and under the supervision of designated Constitutional or statutory
officers, to amend Chapter 23 of Title 1 of the 1976 Code, relating to state
agency rule making and adjudication of contested cases by adding Article 5, so
as to establish the South Carolina Administrative Law Judge Division the
judges of which shall hear, determine, and preside over contested cases of
certain state agencies, departments, divisions, and commissions, to amend the
State Administrative Procedures Act so as to revise the manner in which
regulations are approved and take effect, to abolish specified boards,
commissions, and committees of this State, to provide for transitional
provisions in regard to this Act, to provide for effective dates, and to amend
certain Sections.-short title
02/23/93 House Introduced and read first time HJ-8
02/23/93 House Referred to Committee on Judiciary HJ-8
03/08/93 House Recalled from Committee on Judiciary HJ-32
03/09/93 House Objection by Rep. Wilkins, Hodges, McLeod, Beatty
& Haskins HJ-11
03/09/93 House Amended HJ-31
03/09/93 House Debate interrupted HJ-96
03/10/93 House Amended HJ-14
03/10/93 House Debate interrupted HJ-150
03/11/93 House Amended HJ-25
03/11/93 House Read second time HJ-74
03/11/93 House Roll call Yeas-103 HJ-74
03/25/93 House Amended HJ-20
03/25/93 House Read third time and sent to Senate HJ-21
03/25/93 House Roll call Yeas-090 HJ-21
03/30/93 Senate Introduced and read first time SJ-16
03/30/93 Senate Referred to Committee on Judiciary SJ-27
05/11/93 Senate Recalled from Committee on Judiciary SJ-8
05/11/93 Senate Read second time SJ-20
05/11/93 Senate Ordered to third reading with notice of
amendments SJ-20
05/13/93 Senate Debate adjourned SJ-27
05/17/93 Senate Amended SJ-19
05/17/93 Senate Read third time and returned to House with
amendments SJ-55
05/20/93 House Senate amendment amended HJ-26
05/20/93 House Returned to Senate with amendments HJ-27
05/20/93 Senate Non-concurrence in House amendment SJ-34
05/25/93 House House insists upon amendment and conference
committee appointed Reps. Hodges, Clyborne & Boan HJ-5
05/25/93 Senate Conference committee appointed Sens. Moore,
Stilwell, Jackson SJ-12
06/02/93 Senate Free conference powers granted SJ-85
06/02/93 Senate Free conference committee appointed Sens. Moore,
Stilwell, Jackson SJ-85
06/02/93 House Free conference powers granted HJ-100
06/02/93 House Free conference committee appointed Boan, Hodges
& Clyborne HJ-101
06/14/93 House Free conference report received and adopted HJ-6
06/14/93 Senate Free conference report received and adopted SJ-24
06/14/93 Senate Ordered enrolled for ratification SJ-28
06/15/93 Ratified R 276
06/18/93 Signed By Governor
06/18/93 Effective date Act No. 181
No. 181
(R276, H3546)
AN ACT TO AMEND TITLE 1, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO
ADMINISTRATION OF GOVERNMENT BY ADDING CHAPTER 30, SO AS TO ESTABLISH WITHIN
THE EXECUTIVE BRANCH OF STATE GOVERNMENT NINETEEN DEPARTMENTS AND TO
ESTABLISH WITHIN EACH DEPARTMENT CERTAIN DIVISIONS COMPOSED OF SPECIFIED
STATE AGENCIES, TO PROVIDE FOR THE ORGANIZATION, GOVERNANCE, DUTIES,
FUNCTIONS, AND PROCEDURES OF THE VARIOUS DEPARTMENTS AND DIVISIONS, AND FOR
THE MANNER OF SELECTION, TERMS, AND REMOVAL OF DEPARTMENT HEADS, BOARD AND
COMMISSION MEMBERS, AND OTHER OFFICIALS, TO PROVIDE THAT CERTAIN OTHER
AGENCIES OR DEPARTMENTS OF STATE GOVERNMENT SHALL PERFORM THEIR DUTIES AND
FUNCTIONS AS A PART OF AND UNDER THE SUPERVISION OF DESIGNATED CONSTITUTIONAL
OR STATUTORY OFFICERS, TO AMEND CHAPTER 23 OF TITLE 1 OF THE 1976 CODE,
RELATING TO STATE AGENCY RULE MAKING AND ADJUDICATION OF CONTESTED CASES BY
ADDING ARTICLE 5, SO AS TO ESTABLISH THE SOUTH CAROLINA ADMINISTRATIVE LAW
JUDGE DIVISION THE JUDGES OF WHICH SHALL HEAR, DETERMINE, AND PRESIDE OVER
CONTESTED CASES OF CERTAIN STATE AGENCIES, DEPARTMENTS, DIVISIONS, AND
COMMISSIONS, TO AMEND SECTIONS 1-23-110, 1-23-115, 1-23-120, 1-23-130,
1-23-160, 1-23-310, 1-23-320, 1-23-380, AND TO ADD SECTION 1-23-111 RELATING
TO THE STATE ADMINISTRATIVE PROCEDURES ACT SO AS TO REVISE THE MANNER IN
WHICH REGULATIONS ARE PROMULGATED, APPROVED, AND TAKE EFFECT, TO ABOLISH
SPECIFIED BOARDS, COMMISSIONS, AND COMMITTEES OF THIS STATE, TO PROVIDE FOR
TRANSITIONAL PROVISIONS IN REGARD TO THIS ACT, TO PROVIDE FOR EFFECTIVE
DATES, AND TO AMEND SECTIONS 1-1-110, 1-3-210, 1-3-220, 1-3-240, 1-3-250,
1-15-10, 1-20-50, 1-25-60, 2-7-71, 2-7-73, 2-7-105, 2-13-190, 2-13-240,
2-15-61, 2-17-15, 2-19-30, 2-19-70, 2-22-20, 2-23-10, 2-67-10, 2-67-30,
3-3-210, 3-5-40, 3-5-50, 3-5-60, 3-5-80, 3-5-100, 3-5-120, 3-5-130, 3-5-140,
3-5-150, 3-5-160, 3-5-170, 3-5-190, 3-5-320, 3-5-330, 3-5-340, 3-5-360,
4-9-155, 4-10-25, 4-10-60, 4-10-80, 4-10-90, 4-29-67, 5-3-90, 5-3-110,
5-3-300, 5-7-110, 5-27-510, 6-9-60, 7-13-710, 8-1-80, 8-1-100, 8-11-10,
8-11-945, 8-13-740, 8-13-910, 8-17-370, 8-21-310, 8-21-770, 8-21-780,
8-21-790, 9-1-60, 9-11-180, 10-5-230, 10-5-240, 10-5-270, 10-5-300, 10-5-320,
10-7-10, 10-9-320, 10-11-50, 10-11-80, 11-9-820, 11-9-825, 11-11-10,
11-17-10, 11-35-45, 11-35-710, 11-35-1520, 11-35-5230, 11-35-5250,
11-35-5270, 11-37-200, 12-2-10, 12-4-10, 12-4-30, 12-4-335, 12-4-350,
12-4-370, 12-7-455, 12-7-460, 12-7-1220, 12-7-1225, 12-7-1250, 12-7-1590,
12-7-2010, 12-7-2230, 12-7-2415, 12-7-2590, 12-7-2610, 12-9-130, 12-9-310,
12-9-420, 12-9-630, 12-9-860, 12-13-70, 12-16-1110, 12-19-20, 12-19-60,
12-19-100, 12-21-100, 12-21-320, 12-21-470, 12-21-660, 12-21-780, 12-21-820,
12-21-1060, 12-21-1110, 12-21-1320, 12-21-1540, 12-21-1550, 12-21-1570,
12-21-1580, 12-21-1590, 12-21-1610, 12-21-1840, 12-21-2420, 12-21-2719,
12-21-2720, 12-21-2726, 12-21-3320, 12-21-3441, 12-21-3590, 12-21-3600,
12-23-310, 12-23-815, 12-23-820, 12-23-830, 12-27-270, 12-27-380, 12-27-390,
12-27-405, 12-27-430, 12-27-1210, 12-27-1220, 12-27-1230, 12-27-1240,
12-27-1250, 12-27-1260, 12-27-1290, 12-27-1320, 12-27-1510, 12-29-20,
12-29-110, 12-29-150, 12-31-20, 12-31-50, 12-31-210, 12-31-230, 12-31-240,
12-31-250, 12-31-260, 12-31-270, 12-31-280, 12-31-420, 12-31-610, 12-31-620,
12-31-640, 12-33-70, 12-33-420, 12-33-480, 12-33-485, 12-33-620, 12-33-630,
12-36-1370, 12-36-1710, 12-36-2120, 12-36-2660, 12-37-220, 12-37-380,
12-37-970, 12-37-975, 12-37-1120, 12-37-1130, 12-37-1410, 12-37-1420,
12-37-1610, 12-37-2110, 12-37-2410, 12-37-2650, 12-37-2660, 12-37-2670,
12-37-2680, 12-37-2700, 12-37-2725, 12-37-2727, 12-39-180, 12-43-210,
12-43-220, 12-43-280, 12-43-300, 12-43-305, 12-43-320, 12-43-335, 12-45-70,
12-47-10, 12-47-60, 12-49-90, 12-49-271, 12-49-290, 12-51-135, 12-53-10,
12-53-210, 12-53-220, 12-54-10, 12-54-230, 12-54-240, 12-54-250, 12-54-260,
12-54-420, 12-54-430, 12-54-720, TITLE 13, CHAPTER 1, ARTICLE 1; SECTIONS
13-7-20, 13-7-70, 13-7-160, 13-11-20, 13-11-80, 13-19-160, 14-7-130,
14-23-1140, 15-9-210, 15-9-270, 15-9-280, 15-9-310, 15-9-350, 15-9-360,
15-9-370, 15-9-380, 15-9-390, 15-9-410, 15-9-415, 16-3-1110, 16-3-1120,
16-11-340, 16-23-20, 16-27-60, 16-27-80, 17-13-80, 19-5-30, 20-7-121,
20-7-128, 20-7-410, 20-7-600, 20-7-630, 20-7-655, 20-7-770, 20-7-780,
20-7-1330, 20-7-1490, 20-7-1645, 20-7-2095, 20-7-2115, 20-7-2125, 20-7-2155,
20-7-2170, 20-7-2175, 20-7-2180, 20-7-2185, 20-7-2190, 20-7-2195, 20-7-2200,
20-7-2203, 20-7-2205, 20-7-2260, 20-7-2310, 20-7-2379, 20-7-2640, 20-7-2700,
20-7-2760, 20-7-2830, 20-7-2880, 20-7-2930, 20-7-2940, 20-7-3050, 20-7-3100,
20-7-3110, 20-7-3120, 20-7-3130, 20-7-3170, 20-7-3180, 20-7-3190, 20-7-3200,
20-7-3210, 20-7-3230, 20-7-3235, 20-7-3240, 20-7-3270, 20-7-3280, 20-7-3300,
20-7-3310, 20-7-3350, 20-7-3360, 20-7-5420, 20-7-5610, 20-7-5630, 20-7-5660,
20-7-5670, 22-1-30, 23-3-10, 23-3-160, 23-9-10, 23-9-60, 23-9-65, 23-9-70,
23-9-90, 23-9-150, 23-9-155, 23-9-170, 23-9-180, 23-9-210, 23-10-10,
23-23-30, 23-25-20, 23-25-40, 23-28-120, 23-31-140, 23-33-20, 23-35-70,
23-35-140, 23-36-80, 23-36-160, 23-41-30, 23-43-20, 23-43-70, 23-43-110,
23-43-140, 23-43-180, 24-1-40, 24-1-90, 24-1-100, 24-1-110, 24-1-120,
24-1-130, 24-1-140, 24-1-145, 24-1-150, 24-1-160, 24-1-170, 24-1-200,
24-1-210, 24-1-220, 24-1-230, 24-1-250, 24-1-260, 24-1-270, 24-3-20, 24-3-30,
24-3-40, 24-3-60, 24-3-70, 24-3-80, 24-3-90, 24-3-110, 24-3-130, 24-3-131,
24-3-140, 24-3-150, 24-3-160, 24-3-170, 24-3-180, 24-3-190, 24-3-200,
24-3-210, 24-3-315, 24-3-320, 24-3-330, 24-3-340, 24-3-360, 24-3-380,
24-3-390, 24-3-400, 24-3-410, 24-3-510, 24-3-520, 24-3-530, 24-3-540,
24-3-550, 24-3-710, 24-3-720, 24-3-730, 24-3-740, 24-3-750, 24-3-760,
24-3-920, 24-3-950, 24-3-960, 24-7-90, 24-9-10, 24-9-20, 24-9-30, 24-11-30,
24-13-210, 24-13-230, 24-13-270, 24-13-640, 24-13-710, 24-13-940, 24-13-1310,
24-13-1320, 24-13-1330, 24-13-1340, 24-13-1520, 24-13-1590, 24-19-10,
24-19-20, 24-19-30, 24-19-40, 24-19-60, 24-19-80, 24-19-90, 24-19-100,
24-19-110, 24-19-160, 24-21-10, 24-21-11, 24-21-12, 24-21-13, 24-21-60,
24-21-70, 24-21-220, 24-21-221, 24-21-230, 24-21-250, 24-21-260, 24-21-280,
24-21-290, 24-21-485, 24-21-620, 24-21-645, 24-21-650, 24-21-930, 24-22-20,
24-22-160, 24-23-40, 24-23-110, 24-23-115, 24-23-220, 24-25-40, 24-25-50,
24-25-70, TITLE 25, CHAPTER 11; SECTIONS 27-18-20, 27-31-100, 30-4-40,
31-1-30, 31-1-120, 31-1-140, 31-1-150, 31-1-160, 31-1-180, 31-1-200,
31-1-210, 31-1-220, TITLE 31, CHAPTER 1, ARTICLES 5 AND 7; SECTIONS 31-3-20,
31-3-340, 31-3-370, 31-3-390, 31-3-750, 31-17-340, 31-17-360, 31-17-370,
31-17-510, 33-1-210, 33-14-200, 33-14-220, 33-14-400, 33-15-300, 33-15-310,
33-15-330, 33-16-101, 33-31-60, 33-37-250, 33-37-460, 33-39-460, 34-29-160,
36-9-307, 36-9-319, 37-6-605, 38-1-10, 38-1-20, 38-2-10, TITLE 38, CHAPTERS
3, 5, 7, 9, 11, AND 13, SECTIONS 38-15-10, 38-15-20, 38-15-30, 38-15-50,
38-17-30, 38-17-50, 38-17-60, 38-17-70, 38-17-90, 38-17-120, 38-17-140,
38-17-150, 38-17-170, 38-19-40, 38-19-50, 38-19-440, 38-19-470, 38-19-480,
38-19-490, 38-19-610, 38-19-640, 38-19-650, 38-19-825, 38-21-10, 38-21-20,
38-21-30, 38-21-50, 38-21-60, 38-21-70, 38-21-90, 38-21-100, 38-21-110,
38-21-120, 38-21-125, 38-21-130, 38-21-140, 38-21-160, 38-21-170, 38-21-190,
38-21-200, 38-21-210, 38-21-220, 38-21-240, 38-21-250, 38-21-260, 38-21-270,
38-21-280, 38-21-290, 38-21-300, 38-21-310, 38-21-320, 38-21-330, 38-21-340,
38-21-350, 38-21-370, 38-23-20, 38-23-40, 38-23-50, 38-23-70, 38-23-80,
38-23-100, 38-25-10, 38-25-110, 38-25-160, 38-25-310, 38-25-510, 38-25-520,
38-25-540, 38-25-550, 38-25-570, TITLE 38, CHAPTER 26; TITLE 38, CHAPTER 27,
ARTICLES 1 AND 3; SECTIONS 38-27-310, 38-27-320, 38-27-330, 38-27-350,
38-27-360, 38-27-370, 38-27-390, 38-27-400, 38-27-410, 38-27-500, 38-27-520,
38-27-640, 38-27-660, 38-27-670, 38-27-680, 38-27-910, 38-27-920, 38-27-930,
38-27-940, 38-27-950, TITLE 38, CHAPTERS 29, 31, AND 33; SECTIONS 38-35-10,
38-35-40, 38-35-50, 38-37-60, 38-37-220, 38-37-230, 38-37-240, 38-37-250,
38-37-260, 38-37-300, TITLE 38, CHAPTER 37, ARTICLE 5; SECTIONS 38-37-710,
38-37-720, 38-37-900, 38-37-910, 38-37-920, 38-37-1310, 38-37-1360, TITLE 38,
CHAPTER 37, ARTICLE 13; TITLE 38, CHAPTERS 39 AND 41; SECTIONS 38-43-20,
38-43-30, 38-43-40, 38-43-70, 38-43-100, 38-43-105, 38-43-106, 38-43-110,
38-43-130, 38-43-230, 38-43-250, 38-43-260, 38-44-30, 38-44-40, 38-44-50,
38-44-70, 38-44-80, TITLE 38, CHAPTER 45; SECTIONS 38-46-20, 38-46-30,
38-46-60, 38-46-70, 38-46-100, 38-46-110, 38-46-120, TITLE 38, CHAPTER 47;
SECTIONS 38-49-20, 38-51-20, 38-51-30, 38-51-60, 38-53-10, 38-53-20,
38-53-80, 38-53-90, 38-53-100, 38-53-110, 38-53-130, 38-53-140, 38-53-150,
38-53-160, 38-53-170, 38-53-200, 38-53-210, 38-53-220, 38-53-230, 38-53-310,
38-53-320, 38-55-20, 38-55-40, 38-55-60, 38-55-80, 38-55-120, 38-55-140,
38-55-180, 38-57-150, 38-57-200, 38-57-210, 38-57-220, 38-57-230, 38-57-240,
38-57-250, 38-57-260, 38-57-270, 38-57-280, 38-57-290, 38-57-300, 38-57-310,
38-59-30, TITLE 38, CHAPTER 61; SECTIONS 38-63-220, 38-63-250, 38-63-520,
38-63-580, 38-63-590, 38-63-600, 38-63-610, 38-63-650, 38-65-50, 38-65-210,
38-67-10, 38-67-30, 38-67-40, 38-69-120, 38-69-230, 38-69-320, 38-70-10,
38-70-20, 38-70-30, 38-70-40, 38-70-50, 38-70-60, 38-71-70, 38-71-190,
38-71-310, 38-71-315, 38-71-320, 38-71-325, 38-71-330, 38-71-335, 38-71-340,
38-71-370, 38-71-410, 38-71-510, 38-71-530, 38-71-540, 38-71-550, 38-71-720,
38-71-730, 38-71-735, 38-71-750, 38-71-920, 38-71-950, 38-71-970, 38-71-980,
38-71-1010, 38-71-1020, 38-71-1110, 38-72-40, 38-72-60, TITLE 38, CHAPTER 73,
ARTICLES 1 THROUGH 15; SECTIONS 38-74-10, 38-74-20, 38-74-60, 38-74-70,
38-75-230, TITLE 38, CHAPTER 75, ARTICLE 5; SECTIONS 38-75-750, 38-75-780,
38-75-930, 38-75-940, 38-75-950, 38-75-960, 38-75-980, 38-77-10, 38-77-30,
38-77-110, 38-77-113, 38-77-115, 38-77-120, 38-77-150, 38-77-200, 38-77-260,
38-77-280, 38-77-320, 38-77-330, 38-77-340, 38-77-350, 38-77-510, 38-77-520,
38-77-530, 38-77-570, 38-77-580, 38-77-590, 38-77-600, 38-77-610, TITLE 38,
CHAPTER 77, ARTICLE 9; SECTION 38-77-1120, TITLE 38, CHAPTER 79, ARTICLE 1;
SECTION 38-79-430, TITLE 38, CHAPTERS 81 AND 83; SECTIONS 38-85-70, 38-85-80,
38-87-20, 38-87-30, 38-87-40, 38-87-50, 38-87-80, 38-87-110, 38-87-140, TITLE
38, CHAPTER 89; SECTIONS 39-9-230, 39-15-170, 39-41-40, 39-57-20, 40-1-140,
40-1-310, 40-1-350, 40-3-40, 40-3-120, 40-3-135, 40-3-140, 40-6-40, 40-6-45,
40-6-180, 40-6-220, 40-7-60, 40-7-270, 40-9-30, 40-9-31, 40-9-36, 40-9-95,
40-11-40, 40-11-60, 40-11-90, 40-11-150, 40-11-180, 40-11-190, 40-11-300,
40-11-320, 40-13-60, 40-13-80, 40-13-260, 40-15-40, 40-15-50, 40-15-185,
40-15-200, 40-15-210, 40-15-215, 40-15-370, 40-15-380, 40-19-10, 40-19-70,
40-19-80, 40-19-160, 40-19-170, 40-22-150, 40-22-420, 40-22-440, 40-23-20,
40-23-40, 40-23-127, TITLE 40, CHAPTER 28; SECTIONS 40-29-20, 40-29-50,
40-29-100, 40-29-110, 40-29-160, 40-29-210, 40-33-250, 40-33-931, 40-33-960,
40-35-70, 40-35-135, 40-36-160, 40-37-50, 40-37-230, 40-38-60, 40-38-230,
40-43-135, 40-43-260, 40-43-410, 40-47-170, 40-47-200, 40-47-210, 40-47-570,
40-47-630, 40-47-660, 40-51-160, 40-55-140, 40-55-160, 40-56-10, 40-56-20,
40-57-170, 40-57-220, 40-59-50, 40-59-60, 40-59-90, 40-59-95, 40-59-130,
40-60-160, 40-60-170, 40-60-210, 40-61-40, 40-61-110, 40-63-10, 40-63-30,
40-63-120, TITLE 40, CHAPTER 65; SECTIONS 40-67-100, 40-67-170, 40-69-70,
40-69-150, 40-69-210, 40-69-420, 40-75-40, 40-75-180, 40-77-100, 40-77-110,
40-77-320, 41-1-10, 41-3-10, 41-3-30, 41-3-40, 41-3-50, 41-3-55, 41-3-60,
41-3-70, 41-3-80, 41-3-100, 41-3-110, 41-3-120, 41-3-130, 41-3-140, 41-3-510,
41-3-520, 41-3-530, 41-3-540, TITLE 41, CHAPTER 15, ARTICLE 6; SECTIONS
41-18-90, 41-41-40, 41-44-60, 41-44-80, 42-1-490, 42-1-500, 42-7-10, 42-7-20,
42-7-30, 42-7-40, 42-7-70, 42-7-75, 42-7-90, 42-7-200, 42-7-310, 43-1-10,
43-1-50, 43-1-60, 43-1-70, 43-1-170, 43-1-190, 43-1-200, 43-1-210, TITLE 43,
CHAPTER 3; SECTIONS 43-5-10, 43-5-75, 43-5-120, 43-5-150, 43-5-170, 43-5-220,
43-5-550, 43-5-620, 43-21-10, 43-21-20, 43-21-40, 43-21-50, 43-21-60,
43-21-70, 43-21-80, 43-21-100, 43-21-120, 43-21-130, 43-21-150, 43-21-160,
43-21-170, 43-21-180, 44-1-20, 44-1-40, 44-1-50, 44-1-100, 44-2-75, 44-3-110,
44-3-150, 44-6-5, 44-6-10, 44-6-30, 44-6-40, 44-6-45, 44-6-50, 44-6-70,
44-6-80, 44-6-90, 44-6-100, 44-6-140, 44-6-146, 44-6-150, 44-6-155, 44-6-160,
44-6-170, 44-6-180, 44-6-190, 44-6-220, 44-6-300, 44-6-310, 44-6-320,
44-6-400, 44-6-410, 44-6-420, 44-6-430, 44-6-440, 4-6-460, 44-6-470,
44-6-500, 44-6-520, 44-6-530, 44-9-20, 44-9-30, 44-9-40, 44-9-50, 44-9-60,
44-9-160, 44-15-60, 44-15-80, TITLE 44, CHAPTER 20; SECTIONS 44-22-10,
44-22-50, 44-22-100, 44-22-110, 44-23-10, 44-23-210, 44-23-220, 44-23-410,
44-25-30, 44-26-10, 44-26-70, 44-26-80, 44-26-120, 44-26-170, 44-28-20,
44-28-40, 44-28-60, 44-28-80, 44-28-360, 44-28-370, 44-29-210, 44-30-10,
44-36-20, 44-38-30, TITLE 44, CHAPTER 38, ARTICLE 3; SECTIONS 44-40-30,
44-43-30, 44-43-50, 44-43-70, TITLE 44, CHAPTER 49; SECTIONS 44-52-10,
44-53-620, 44-53-630, 44-53-640, 44-53-650, 44-53-660, 44-53-710, 44-53-740,
44-53-1320, 44-53-1340, 44-53-1360, 44-53-1380, 44-53-1390, 44-53-1430,
44-53-1440, 44-53-1450, 44-53-1470, 44-55-20, 44-55-40, 44-55-45, 44-55-60,
44-55-2320, 44-55-2360, 44-56-20, 44-56-50, 44-56-130, 44-56-840, 44-61-70,
44-63-30, 44-63-110, 44-65-80, 44-67-30, 44-67-50, 44-85-20, 44-85-30,
44-85-50, 44-93-20, 44-93-50, 44-93-130, 44-96-60, 44-96-120, 44-96-140,
44-96-160, 44-96-170, 44-96-180, 44-96-200, 44-96-220, 44-96-250, 44-96-280,
44-107-80, 46-13-60, 46-13-150, 46-51-20, 47-3-310, 47-3-320, 47-3-420,
47-3-510, 47-3-550, 47-5-30, 48-1-85, 48-1-110, 48-9-30, 48-9-40, 48-9-230,
48-9-260, 48-9-270, 48-9-280, 48-9-290, 48-9-300, 48-9-310, 48-9-320, TITLE
48, CHAPTER 9, ARTICLES 5, 7, AND 9; SECTIONS 48-9-1210, 48-9-1230,
48-9-1320, 48-9-1810, 48-9-1820, 48-9-1840, 48-9-1850, 48-11-10, 48-11-15,
48-11-90, 48-11-100, 48-11-185, 48-11-190, 48-11-210, 48-14-20, 48-14-40,
48-14-50, 48-14-60, 48-14-70, 48-14-80, 48-14-85, 48-14-90, 48-14-110,
48-14-120, 48-14-130, 48-14-140, 48-14-160, 48-14-170, TITLE 48, CHAPTER 18;
SECTIONS 48-20-30, 48-20-40, 48-20-110, 48-20-210, 48-20-270, 48-20-280,
48-21-20, 48-27-70, 48-27-200, 48-30-30, 48-30-50, 48-30-70, 48-30-80, TITLE
48, CHAPTER 39; TITLE 48, CHAPTER 43; SECTIONS 48-45-40, 48-45-80, 48-47-175,
48-55-10, 49-1-15, TITLE 49, CHAPTERS 3, 4, 5, 6, 11, 21, 23 AND 25;
SECTIONS 49-27-10, 49-27-70, 49-27-80, TITLE 49, CHAPTER 29; TITLE 50,
CHAPTERS 1, 3, 5, 7, 9, 11, 13, 15 AND 17; SECTION 50-18-10, TITLE 50,
CHAPTERS 19, 20, 21, 23, AND 25; TITLE 51, CHAPTER 1, ARTICLE 1; SECTIONS
51-3-145, 51-3-160, TITLE 51, CHAPTER 11; SECTION 51-15-540, TITLE 51,
CHAPTER 17; SECTIONS 51-19-10, 52-7-15, 52-7-20, 52-7-30, 54-15-320, TITLE
55, CHAPTERS 1 AND 5; SECTIONS 55-8-10, 55-8-50, 55-8-170, TITLE 55, CHAPTER
9; SECTIONS 55-11-10, 55-11-520, 55-15-10, 56-1-10, 56-1-80, 56-1-90,
56-1-135, 56-1-145, 56-1-220, 56-1-225, 56-1-270, 56-1-280, 56-1-290,
56-1-300, 56-1-310, 56-1-320, 56-1-330, 56-1-340, 56-1-350, 56-1-360,
56-1-365, 56-1-370, 56-1-380, 56-1-390, 56-1-400, 56-1-410, 56-1-420,
56-1-460, 56-1-463, 56-1-475, 56-1-510, 56-1-520, 56-1-530, 56-1-540,
56-1-550, 56-1-630, 56-1-740, 56-1-745, 56-1-746, 56-1-770, 56-1-790,
56-1-800, 56-1-810, 56-1-820, 56-1-830, 56-1-840, 56-1-850, 56-1-1020,
56-1-1030, 56-1-1090, 56-1-1100, 56-1-1120, 56-1-1130, 56-1-1320, 56-1-1330,
56-1-1340, 56-1-1730, 56-1-1760, 56-1-2050, 56-1-2100, 56-1-2110, 56-1-2130,
56-1-2140, 56-3-20, 56-3-115, 56-3-250, 56-3-255, 56-3-360, 56-3-650,
56-3-790, 56-3-860, 56-3-910, 56-3-1150, 56-3-1160, 56-3-1330, 56-3-1340,
56-3-1710, 56-3-1750, 56-3-1850, 56-3-1910, 56-3-1950, 56-3-1960, 56-3-1971,
56-3-1972, 56-3-1973, 56-3-1974, 56-3-2010, 56-3-2020, 56-3-2060, 56-3-2150,
56-3-2210, 56-3-2230, 56-3-2250, 56-3-2320, 56-3-2600, 56-3-2710, 56-3-2810,
56-3-3310, 56-3-3710, 56-3-4310, 56-3-4910, 56-3-5920, 56-5-60, 56-5-370,
56-5-910, 56-5-920, 56-5-930, 56-5-935, 56-5-1520, 56-5-1530, 56-5-1540,
56-5-1560, 56-5-1570, 56-5-1890, 56-5-1910, 56-5-1980, 56-5-2120, 56-5-2330,
56-5-2540, 56-5-2550, 56-5-2585, 56-5-2715, 56-5-2730, 56-5-2945, 56-5-2950,
56-5-2990, 56-5-3660, 56-5-3670, 56-5-3680, 56-5-3690, 56-5-3750, 56-5-3880,
56-5-4040, 56-5-4060, 56-5-4070, 56-5-4075, 56-5-4095, 56-5-4140, 56-5-4145,
56-5-4150, 56-5-4160, 56-5-4170, 56-5-4175, 56-5-4180, 56-5-4185, 56-5-4190,
56-5-4200, 56-5-4205, 56-5-4210, 56-5-4220, 56-5-4720, 56-5-4840, 56-5-4880,
56-5-4940, 56-5-5010, 56-5-5320, 56-5-5330, 56-5-5340, 56-5-5350, 56-5-5360,
56-5-5400, 56-5-5410, 56-5-5420, 56-5-5430, 56-5-5670, 56-5-5810, 56-5-5830,
56-5-5850, 56-5-5860, 56-5-5870, 56-5-6140, 56-7-10, 56-7-20, 56-7-30,
56-7-50, 56-9-20, 56-10-10, 56-10-20, 56-10-40, 56-10-45, 56-10-210,
56-10-220, 56-10-240, 56-10-245, 56-10-280, 56-10-290, 56-15-10, 56-15-50,
56-15-320, 56-16-10, 56-16-20, 56-16-110, 56-16-150, 56-19-10, 56-19-80,
56-19-390, 56-19-425, 56-23-10, 56-23-40, 56-23-70, 56-23-85, 56-25-10,
56-27-10, 56-29-20, 56-29-50, 56-31-50, TITLE 57, CHAPTER 1, ARTICLES 1, 3,
AND 5; TITLE 57, CHAPTER 3, ARTICLE 1; TITLE 57, CHAPTER 3, ARTICLE 7; TITLE
57, CHAPTER 5, ARTICLES 1 AND 3; SECTIONS 57-5-710, 57-5-720, 57-5-760,
57-5-870, 57-5-1010, 57-5-1320, 57-5-1335, 57-5-1350, 57-5-1450, 57-5-1610,
57-5-1620, 57-5-1630, 57-5-1660, TITLE 57, CHAPTER 11, ARTICLE 3; SECTIONS
57-13-10, 57-13-40, 57-13-130, 57-15-140, TITLE 57, CHAPTER 23; TITLE 57,
CHAPTER 25, ARTICLE 3; SECTIONS 57-25-430, 57-25-440, 57-25-460, 57-25-480,
57-25-490, 57-25-640, 57-25-650, 57-25-670, 57-25-690, 57-25-700, 57-27-20,
57-27-90, 58-1-30, 58-1-40, 58-3-20, 58-3-24, 58-3-100, 58-12-130,
58-15-1625, 58-15-1650, 58-15-1680, 58-15-1910, 58-15-1920, 58-15-1930,
58-15-1940, 58-15-1950, 58-15-2120, 58-15-2130, 58-17-1450, 58-23-1220,
58-25-80, 58-27-690, 58-33-140, 58-35-50, 59-20-20, 59-53-10, 59-53-420,
59-53-2050, 59-54-40, 59-67-20, 59-67-260, 59-67-540, 59-67-570, 59-117-90,
59-137-50, TITLE 61, CHAPTERS 1, 3, 5, 7, AND 9; SECTIONS 61-13-295,
61-13-410, 61-13-470, 61-13-500, 61-13-510, 61-13-540, 61-13-570, 61-13-620,
61-13-630, 61-13-750, 61-13-810, 61-13-835, 61-13-836, 61-13-875, 61-13-885,
62-3-203, 62-3-301, 62-3-704, 62-3-706, 62-3-1002, AND 62-5-105; TO AMEND THE
1976 CODE BY ADDING SECTIONS 1-3-215, 2-47-60, 2-68-50, 12-2-5, 12-4-15,
TITLE 12, CHAPTER 4, ARTICLE 4; SECTIONS 12-27-35, 12-27-1265, TITLE 13,
CHAPTER 1, ARTICLES 3, 5, 7, 9, AND 11, TITLE 13, CHAPTER 2; SECTIONS
23-3-15, 23-3-25, TITLE 23, CHAPTER 6; SECTIONS 38-1-30, 40-11-350,
40-13-300, 40-45-260, 40-73-15, 41-3-610, TITLE 48, CHAPTER 4; SECTIONS
48-9-15, 48-9-45, TITLE 48, CHAPTER 22; SECTION 49-1-16, TITLE 51, CHAPTER 1,
ARTICLES 3 AND 5; TITLE 56, CHAPTER 1, ARTICLE 15; TITLE 56, CHAPTER 3,
ARTICLE 47; TITLE 57, CHAPTER 3, ARTICLE 2; AND SECTION 58-3-26; AND TO AMEND
THE 1976 CODE BY REPEALING SECTIONS 1-11-75, 1-20-50, 2-63-10, 8-1-90,
12-7-775, 12-27-1280, 12-27-1295, 12-27-1300, 12-27-1310, TITLE 13, CHAPTERS
3, 5, AND 9; SECTIONS 20-7-2308, 20-7-2309, 20-7-2327, 20-7-2335, 20-7-2337,
20-7-2365, 20-7-2950, 20-7-3140, 20-7-3150, 20-7-3160, 20-7-3250, 20-7-5620,
20-7-5680, 20-7-5810, 20-7-5820, 20-7-5830, 20-7-5840, 20-7-5850, 20-7-5860,
23-3-60, TITLE 23, CHAPTER 5; 23-8-10, 23-8-20, 23-8-30, 23-9-510, 23-9-520,
23-9-530, TITLE 23, CHAPTER 23, ARTICLES 1 AND 3; 23-43-50, 24-1-50, 24-1-60,
24-1-70, 24-1-80, 24-3-100, 24-21-20, 24-21-210, 24-26-10, 24-26-20,
24-26-30, 24-26-40, 24-26-50, 27-2-80, 27-2-90, 27-2-100, 38-3-20, 38-3-30,
38-3-50, 38-3-90, 40-29-60, 41-3-20, TITLE 41, CHAPTER 45; SECTIONS 42-9-380,
43-1-20, 43-1-25, 43-1-30, 43-1-40, 43-21-30, 44-1-10, 44-1-60, 44-6-20,
44-6-60, 44-6-65, 44-6-110, 44-6-120, 44-6-130, 44-96-70, 48-9-210, 48-9-220,
48-9-240, 48-9-250, 55-5-30, 55-5-40, 56-1-1400, TITLE 57, CHAPTER 3,
ARTICLES 3, 5, 9, AND 11; SECTIONS 57-3-620, 57-11-40, 57-11-230, 57-11-260,
57-11-310, 57-11-400, 58-3-21, 58-3-22, 58-3-23, 58-3-25, TITLE 58, CHAPTER
19; AND SECTION 6, PART II, OF ACT 164 OF 1993, SO AS TO REVISE, ADD, OR
REPEAL THEM RESPECTIVELY IN CONFORMITY WITH THE ABOVE PROVISIONS.
Be it enacted by the General Assembly of the State of South Carolina:
Departments of state government
SECTION 1. Title 1 of the 1976 Code is amended by adding Chapter 30 to read:
"CHAPTER 30
Departments of State Government
A. General Provisions
Section 1-30-10. (A) There are hereby created, within the executive branch of the state government, the following departments:
1. Department of Agriculture
2. Department of Alcohol and Other Drug Abuse Services
3. Department of Commerce
4. Department of Corrections
5. Department of Disabilities and Special Needs
6. Department of Education
7. Department of Health and Environmental Control
8. Department of Health and Human Services
9. Department of Insurance
10. Department of Juvenile Justice
11. Department of Labor, Licensing, and Regulation
12. Department of Mental Health
13. Department of Natural Resources
14. Department of Parks, Recreation and Tourism
15. Department of Probation, Pardon and Parole
16. Department of Public Safety
17. Department of Revenue and Taxation
18. Department of Social Services
19. Department of Transportation
(B) (1) The governing authority of each department shall be either:
(i) a director who must be appointed by the Governor with the advice and consent of the Senate, subject to removal from office by the Governor pursuant to provisions of Section 1-3-240; or,
(ii) a seven member board to be appointed and constituted in a manner provided for by law; or,
(iii) in the case of the Department of Agriculture and the Department of Education, the State Commissioner of Agriculture and the State Superintendent of Education, respectively, elected to office under the Constitution of this State.
(2) In making appointments to boards and for department directors, race, gender, and other demographic factors should be considered to assure nondiscrimination, inclusion, and representation to the greatest extent possible of all segments of the population of this State; however, consideration of these factors in no way creates a cause of action or basis for an employee grievance for a person appointed or for a person who fails to be appointed. The Governor in making the appointments provided for by this section shall endeavor to appoint individuals who have demonstrated exemplary managerial skills in either the public or private sector.
(C) Each department shall be organized into appropriate divisions by the governing authority of the department through consolidation or subdivision. The power to reorganize the department supersedes any provision of law to the contrary pertaining to individual divisions; provided, however, the dissolution of any division must receive legislative approval by authorization included in the annual general appropriations act.
Any other approval procedures for department reorganization in effect on the effective date of this act no longer apply.
(D) The governing authority of a department is vested with the duty of overseeing, managing, and controlling the operation, administration, and organization of the department. The governing authority has the power to create and appoint standing or ad hoc advisory committees in its discretion or at the direction of the Governor to assist the department in particular areas of public concern or professional expertise as is deemed appropriate. Such committees shall serve at the pleasure of the governing authority and committee members shall not receive salary or per diem, but shall be entitled to reimbursement for actual and necessary expenses incurred pursuant to the discharge of official duties not to exceed the per diem, mileage, and subsistence amounts allowed by law for members of boards, commissions, and committees.
(E) The department director may appoint deputy directors to head the divisions of their department, with each deputy director managing one or more of the divisions. In making appointments race, gender, and other demographic factors should be considered to assure nondiscrimination, inclusion, and representation to the greatest extent possible of all segments of the population of this State; however, consideration of these factors in making an appointment in no way creates a cause of action or basis for an employee grievance for a person appointed or for a person who fails to be appointed. Deputy directors serve at the will and pleasure of the department director. The deputy director of a division is vested with the duty of overseeing, managing, and controlling the operation and administration of the division under the direction and control of the department director and performing such other duties as delegated by the department director.
(F) (1) In the event a vacancy should occur in the office of department director at a time when the General Assembly is not in session, the Governor may temporarily fill the vacancy pursuant to Section 1-3-210.
(2) Notwithstanding the provisions of Subitem (F)(1), as of July 1, 1993, for each department created pursuant to the provisions of this act which must be governed by a single director, an initial interim director shall serve as the governing authority, serving until January 31, 1994. During that period the following departments must be governed by the director or interim director of the following agencies as of June 30, 1993:
(i) Department of Corrections, created pursuant to Section 1-30-30, by the director of the former Department of Corrections;
(ii) Department of Juvenile Justice created pursuant to Section 1-30-60, by the interim director of the former Department of Youth Services;
(iii) Department of Probation, Pardon and Parole created pursuant to Section 1-30-85 by the director of the former Department of Probation, Pardon and Parole;
(iv) Department of Social Services created pursuant to Section 1-30-100, by the director of the former Department of Social Services;
(v) Department of Parks, Recreation and Tourism created pursuant to Section 1-30-80, by the director of the former Department of Parks, Recreation and Tourism;
(vi) Department of Commerce created pursuant to Section 1-30-25, by the Executive Director of the former State Development Board;
(vii) Department of Alcohol and Other Drug Abuse Services created pursuant to Section 1-30-20, by the director of the former South Carolina Commission on Alcohol and Drug Abuse.
(3) As of December 1, 1993, the Governor must submit to the Senate the names of appointees to the permanent department directorships for those departments created on July 1, 1993 and February 1, 1994. If no person has been appointed and qualified for a directorship as of February 1, 1994, the Governor may appoint an interim director to serve pursuant to the provisions of (F) (1).
(4) Notwithstanding provisions of (2) and (3) to the contrary, the initial interim director of the Department of Public Safety shall be appointed by the Budget and Control Board and such initial interim director must not be appointed as the permanent director of the department by the Governor.
(G) (1) Department governing authorities must, no later than the first day of the 1994 legislative session and every twelve months thereafter for the following three years, submit to the Governor and General Assembly reports giving detailed and comprehensive recommendations for the purposes of merging or eliminating duplicative or unnecessary divisions, programs, or personnel within each department to provide a more efficient administration of government services. Thereafter, the Governor shall periodically consult with the governing authorities of the various departments and upon such consultation the Governor shall submit a report of any recommendations to the General Assembly for review and consideration.
(2) The Governor shall report to the General Assembly no later than the second Tuesday in January of 1994, his recommendation for restructuring the following offices and divisions presently under his direct supervision, and as to how each might be restructured within other appropriate departments or divisions amended by this act:
(i) Office of Executive Policy and Programs;
(ii) Office of Energy Programs;
(iii) Office of Personnel and Program Services;
(iv) Office of Research;
(v) Division of Health;
(vi) Division of Economic Opportunity;
(vii) Division of Economic of Development;
(viii) Division of Ombudsman and Citizens' Services;
(ix) Division of Education;
(x) Division of Natural Resources;
(xi) Division of Human Services.
(H) Department governing authorities must submit to the General Assembly by the first day of the 1994 legislative session and every five years thereafter a mission statement that must be approved by the General Assembly by Joint Resolution.
Section 1-30-15. Department of Agriculture.
Effective on July 1, 1993, the following agencies, boards, and commissions, including all of the allied, advisory, affiliated, or related entities as well as the employees, funds, property and all contractual rights and obligations associated with any such agency, except for those subdivisions specifically included under another department, are hereby transferred to and incorporated in and shall be administered as part of the Department of Agriculture:
Department of Agriculture, formerly provided for at Section 46-39-10, et seq.
Section 1-30-20. Department of Alcohol and Other Drug Abuse Services.
Effective on July 1, 1993, the following agencies, boards, and commissions, including all of the allied, advisory, affiliated, or related entities as well as the employees, funds, property and all contractual rights and obligations associated with any such agency, except for those subdivisions specifically included under another department, are hereby transferred to and incorporated in and shall be administered as part of the Department of Alcohol and Other Drug Abuse Services:
(A) South Carolina Commission on Alcohol and Drug Abuse, formerly provided for at Section 44-49-10, et seq.;
(B) Drug-free Schools and Communities Program in the Governor's Office, provided for under grant programs.
Section 1-30-25. Department of Commerce.
Effective on July 1, 1993, the following agencies, boards, and commissions, including all of the allied, advisory, affiliated, or related entities as well as the employees, funds, property and all contractual rights and obligations associated with any such agency, except for those subdivisions specifically included under another department, are hereby transferred to and incorporated in and shall be administered as part of the Department of Commerce to be initially divided into divisions for Aeronautics, Advisory Coordinating Council for Economic Development, State Development, Public Railways and Savannah Valley Development:
(A) South Carolina Aeronautics Commission, formerly provided for at Section 55-5-10, et seq.;
(B) Coordinating Council for Economic Development, formerly provided for at Section 41-45-30, et seq.;
(C) Savannah Valley Authority, formerly provided for at Section 13-9-10, et seq.;
(D) State Development Board, except for the Film Office, formerly provided for at Section 13-3-10, et seq.;
(E) South Carolina Public Railways Commission, formerly provided for at Section 58-19-10, et seq.
Section 1-30-30. Department of Corrections.
Effective on July 1, 1993, the following agencies, boards, and commissions, including all of the allied, advisory, affiliated, or related entities as well as the employees, funds, property and all contractual rights and obligations associated with any such agency, except for those subdivisions specifically included under another department, are hereby transferred to and incorporated in and shall be administered as part of the Department of Corrections:
Department of Corrections, formerly provided for at Section 24-1-10, et seq.
Section 1-30-35. Department of Disabilities and Special Needs.
Effective on July 1, 1993, the following agencies, boards, and commissions, including all of the allied, advisory, affiliated, or related entities as well as the employees, funds, property and all contractual rights and obligations associated with any such agency, except for those subdivisions specifically included under another department, are hereby transferred to and incorporated in and shall be administered as part of the Department of Disabilities and Special Needs to be initially divided into divisions for Mental Retardation, Head and Spinal Cord Injury, and Autism; provided, however, that the board of the former Department of Mental Retardation as constituted on June 30, 1993, and thereafter, under the provisions of Section 44-19-10, et seq., shall be the governing authority for the department.
(A) Department of Mental Health Autism programs, formerly provided for at Section 44-9-10, et seq.;
(B) Head and Spinal Cord Injury Information System, formerly provided for at Section 44-38-10, et seq.;
(C) Department of Mental Retardation, formerly provided for at Section 44-19-10, et seq.
Section 1-30-40. Department of Education.
Effective on July 1, 1993, the following agencies, boards, and commissions, including all of the allied, advisory, affiliated, or related entities as well as the employees, funds, property and all contractual rights and obligations associated with any such agency, except for those subdivisions specifically included under another department, are hereby transferred to and incorporated in and shall be administered as part of the Department of Education:
State Department of Education, provided for at Section 59-5-10, et seq.
Section 1-30-45. Department of Health and Environmental Control.
Effective on July 1, 1994, the following agencies, boards, and commissions, including all of the allied, advisory, affiliated, or related entities as well as the employees, funds, property and all contractual rights and obligations associated with any such agency, except for those subdivisions specifically included under another department, are hereby transferred to and incorporated in and shall be administered as part of the Department of Health and Environmental Control and to include a coastal division:
(A) Department of Health and Environmental Control, formerly provided for at Section 44-1-10, et seq.;
(B) South Carolina Coastal Council, formerly provided for at Section 48-39-10, et seq.;
(C) State Land Resources Conservation Commission regulatory division, formerly provided for at Section 48-9-10, et seq.;
(D) Water Resources Commission regulatory division, formerly provided for at Section 49-3-10, et seq.
Section 1-30-50. Department of Health and Human Services.
Effective on July 1, 1995, the following agencies, boards, and commissions, including all of the allied, advisory, affiliated, or related entities as well as the employees, funds, property and all contractual rights and obligations associated with any such agency, except for those subdivisions specifically included under another department, are hereby transferred to and incorporated in and shall be administered as part of the Department of Health and Human Services:
Department of Health and Human Services Finance Commission, formerly provided for at Section 44-6-10, et seq.
Section 1-30-55. Department of Insurance.
Effective on July 1, 1995, the following agencies, boards, and commissions, including all of the allied, advisory, affiliated, or related entities as well as the employees, funds, property and all contractual rights and obligations associated with any such agency, except for those subdivisions specifically included under another department, are hereby transferred to and incorporated in and shall be administered as part of the Department of Insurance:
Department of Insurance, formerly provided for at Section 38-3-10, et seq.
Section 1-30-60. Department of Juvenile Justice.
Effective on July 1, 1993, the following agencies, boards, and commissions, including all of the allied, advisory, affiliated, or related entities as well as the employees, funds, property and all contractual rights and obligations associated with any such agency, except for those subdivisions specifically included under another department, are hereby transferred to and incorporated in and shall be administered as part of the Department of Juvenile Justice:
Department of Youth Services, formerly provided for at Section 20-7-3100, et seq.
Section 1-30-65. Department of Labor, Licensing, and Regulation.
Effective on February 1, 1994, the following agencies, boards, and commissions, including all of the allied, advisory, affiliated, or related entities as well as the employees, funds, property and all contractual rights and obligations associated with any such agency, except for those subdivisions specifically included under another department, are hereby transferred to and incorporated in and shall be administered as part of the Department of Labor, Licensing, and Regulation to be initially divided into divisions for Labor, State Fire Marshal, and Professional and Occupational Licensing:
(A) Fire Marshal Division of Budget & Control Board, formerly provided for at Section 23-9-10, et seq.;
(B) Department of Labor, formerly provided for at Title 12, Chapter 37; Title 46, Chapter 43; and Title 41, Chapters 1-25;
(C) Professional and Occupational Licensing Boards including:
Accountancy Board, formerly provided for at Section 40-1-10 et seq.;
Architectural Board of Examiners, formerly provided for at Section 40-3-10 et seq.;
Athletic Commission, formerly provided for at Section 52-7-10 et seq.;
Auctioneers Commission, formerly provided for at Section 40-6-10 et seq.;
Barber Examiners Board, formerly provided for at Section 40-7-10 et seq.;
Barrier Free Design Board, formerly provided for at Section 10-5-210 et seq.;
Building Code Council, formerly provided for at Section 6-9-60 et seq.;
Burglar Alarm Business, formerly provided for at Section 40-79-10 et seq.;
Chiropractic Examiners Board, formerly provided for at Section 40-9-10 et seq.;
Contractors Licensing Board, formerly provided for at Section 40-11-10, et seq.;
Cosmetology Board, formerly provided for at Section 40-13-10 et seq.;
Dentistry Board, formerly provided for at Section 40-15-10 et seq.;
Embalmers and Funeral Directors/Funeral Service Board, formerly provided for at Section 40-19-10, et seq.;
Engineers & Land Surveyors Board, formerly provided for at Section 40-21-10 et seq.;
Environmental Systems Operators Board, formerly provided for at Section 40-23-10 et seq.;
Fire Sprinkler Contractors Board, formerly provided for at Section 23-45-10 et seq.;
Foresters Registration Board, formerly provided for at Section 48-27-10 et seq.;
Geologists Registration Board, formerly provided for at Section 40-77-10, et seq.;
Harbor Pilots/ Pilotage Commission, formerly provided for at Section 54-15-40, et seq.;
Liquefied Petroleum Gas Board, formerly provided for at Section 39-43-20, et seq.;
Manufactured Housing Board, formerly provided for at Section 31-17-10, et seq.;
Modular Appeals Board, formerly provided for at Section 23-43-50, et seq.;
Nursing Board, formerly provided for at Section 40-33-10 et seq.;
Nursing Home Administrators Board, formerly provided for at Section 40-35-10 et seq.;
Occupational Therapy Board, formerly provided for at Section 40-36-10 et seq.;
Optometry Board, formerly provided for at Section 40-37-10 et seq.;
Opticianry Board, formerly provided for at Section 40-38-10 et seq.;
Pharmacy Board, formerly provided for at Section 40-43-10 et seq.;
Physical Therapy Examiners, formerly provided for at Section 40-45-10 et seq.;
Physicians, Surgeons and Osteopaths/ Board of Medical Examiners, formerly provided for at Section 40-47-10 et seq.;
Podiatry Examiners, formerly provided for at Section 40-51-10 et seq.;
Professional Counselors, Marital and Family Therapists;
Psychology Board of Examiners, formerly provided for at Section 40-75-10 et seq.;
Pyrotechnic Safety Board, formerly provided for at Section 40-56-10 et seq.;
Real Estate Brokers & Appraisers, formerly provided for at Section 40-57-10 et seq.;
Residential Home Builders Board, formerly provided for at Section 40-59-10 et seq.;
Sanitarian Board of Examiners, formerly provided for at Section 40-61-10 et seq.;
Social Worker Board of Examiners, formerly provided for at Section 40-63-10 et seq.;
Speech Pathology & Audiology Board of Examiners, formerly provided for at Section 40-67-10 et seq.;
Veterinary Medical Examiners, formerly provided for at Section 40-69-10 et seq.
Section 1-30-70. Department of Mental Health.
Effective on July 1, 1993, the following agencies, boards, and commissions, including all of the allied, advisory, affiliated, or related entities as well as the employees, funds, property and all contractual rights and obligations associated with any such agency, except for those subdivisions specifically included under another department, are hereby transferred to and incorporated in and shall be administered as part of the Department of Mental Health to include a Children's Services Division and shall include:
Department of Mental Health, provided for at Section 44-9-10, et seq.
Section 1-30-75. Department of Natural Resources.
Effective on July 1, 1994, the following agencies, boards, and commissions, including all of the allied, advisory, affiliated, or related entities as well as the employees, funds, property and all contractual rights and obligations associated with any such agency, except for those subdivisions specifically included under another department, are hereby transferred to and incorporated in and shall be administered as part of the Department of Natural Resources to be initially divided into divisions for Geological Mapping and State Geologist, Land Resources Conservation, Water Resources, Marine Resources, Wildlife and Freshwater Fish, and State Natural Resources Enforcement; Provided the South Carolina Wildlife Commission Board, as constituted on June 30, 1993, and thereafter, under the provisions of Section 50-3-10 et. seq. shall be the governing authority for the department:
(A) Geological Mapping Division of the Budget and Control Board, to include the State Geologist, formerly provided for at Section 1-11-10, et seq.;
(B) State Land Resources Conservation Commission, less the regulatory division, formerly provided for at Section 48-9-10, et seq.;
(C) South Carolina Migratory Waterfowl Commission, formerly provided for at Section 50-11-20, et seq.;
(D) Water Resources Commission, less the regulatory division, formerly provided for at Section 49-3-10, et seq.;
(E) South Carolina Wildlife Commission, formerly provided for at Section 50-3-10, et seq.
Section 1-30-80. Department of Parks, Recreation and Tourism.
Effective on July 1, 1993, the following agencies, boards, and commissions, including all of the allied, advisory, affiliated, or related entities as well as the employees, funds, property and all contractual rights and obligations associated with any such agency, except for those subdivisions specifically included under another department, are hereby transferred to and incorporated in and shall be administered as part of the Department of Parks, Recreation and Tourism to include a Parks, Recreation and Tourism Division and Film Division.
(A) Film Office of the State Development Board, formerly provided for at Section 13-3-10, et seq.;
(B) Department of Parks, Recreation and Tourism; formerly provided for at Section 51-1-10, 51-3-10, 51-7-10, 51-9-10 and 51-11-10, et seq.
Section 1-30-85. Department of Probation, Pardon and Parole.
Effective on July 1, 1993, the following agencies, boards, and commissions, including all of the allied, advisory, affiliated, or related entities as well as the employees, funds, property and all contractual rights and obligations associated with any such agency, except for those subdivisions specifically included under another department, are hereby transferred to and incorporated in and shall be administered as part of the Department of Probation, Pardon and Parole:
Department of Probation, Pardon and Parole, formerly provided for at Section 24-21-10, et seq.
Section 1-30-90. Department of Public Safety
Effective on July 1, 1993, the following agencies, boards, and commissions, including all of the allied, advisory, affiliated, or related entities as well as the employees, funds, property and all contractual rights and obligations associated with any such agency, except for those subdivisions specifically included under another department, are hereby transferred to and incorporated in and shall be administered as part of the Department of Public Safety to be initially divided into divisions for Highway Patrol, State Police, Training and Continuing Education, Motor Vehicle Records and Vehicle Inspection, and Public Safety.
(A) Law Enforcement Hall of Fame, formerly provided for at Section 23-25-10, et seq.;
(B) State Highway Patrol, formerly provided for at Section 23-5-10, et seq.;
(C) Public Service Commission Safety Enforcement, formerly provided at Section 58-3-310;
(D) Law Enforcement Training Council, formerly provided for at Section 23-23-30, et seq.;
(E) Public Safety Division, formerly of the Governor's Office;
(F) The vehicle inspection, administrative services, drivers records, and financial responsibility sections and other offices of the Division of Motor Vehicles formerly provided for at Section 56-1-10 et. seq.
Section 1-30-95. Department of Revenue and Taxation.
Effective on July 1, 1993, the following agencies, boards, and commissions, including all of the allied, advisory, affiliated, or related entities as well as the employees, funds, property and all contractual rights and obligations associated with any such agency, except for those subdivisions specifically included under another department, are hereby transferred to and incorporated in and shall be administered as part of the Department of Revenue and Taxation to be initially divided into divisions for Alcohol Beverage Control, Motor Vehicles, and Tax; provided, however, that from July 1, 1993, until February 1, 1995, the governing authority of the department shall be the commissioners of the Tax Commission, as constituted June 30, 1993, and thereafter, pursuant to the provisions of Section 12-3-10, et seq.:
(A) Licensing Division of Alcoholic Beverage Control Commission, formerly provided for at Section 61-1-10, et seq.;
(B) Motor Vehicle Division of Department of Highways and Public Transportation, formerly provided for at Section 56-1-10, et seq.;
(C) Tax Commission, formerly provided for at Section 12-3-10, et seq.
Section 1-30-100. Department of Social Services.
Effective on July 1, 1993, the following agencies, boards, and commissions, including all of the allied, advisory, affiliated, or related entities as well as the employees, funds, property and all contractual rights and obligations associated with any such agency, except for those subdivisions specifically included under another department, are hereby transferred to and incorporated in and shall be administered as part of the Department of Social Services:
Department of Social Services, formerly provided for at Section 43-1-10, et seq.
Section 1-30-105. Department of Transportation.
Effective on July 1, 1993, the following agencies, boards, and commissions, including all of the allied, advisory, affiliated, or related entities as well as the employees, funds, property and all contractual rights and obligations associated with any such agency, except for those subdivisions specifically included under another department, are hereby transferred to and incorporated in and shall be administered as part of the Department of Transportation to be initially divided into divisions for Mass Transit, Construction and Maintenance, Engineering and Planning, Finance and Administration; provided, however, that the State Highway Commission as constituted on June 30, 1993, under the provisions of Title 56, shall be the governing authority for the department until February 15, 1994, or as soon as its successors are elected or appointed and qualified, whichever is later:
Department of Highways and Public Transportation, except Motor Vehicle Division and State Highway Patrol, formerly provided for at Section 56-1-10, et seq.
B. The Governor
Section 1-30-110. (A) Effective July 1, 1993, the following agencies, boards, and commissions, including all of the allied, advisory, affiliated, or related entities as well as the employees, funds, property and all contractual rights and obligations associated with any such agency, except for those subdivisions specifically included under another department, are hereby transferred to and incorporated in and shall be administered as part of the office of the Governor:
(1) Continuum of Care for Emotionally Disturbed Children provided for at Section 20-7-5610, et seq.;
(2) Guardian Ad Litem Program, formerly provided for at Section 20-7-121, et seq.;
(3) State Office of Victim's Assistance, formerly provided for at Section 16-3-1110, et seq.;
(4) Department of Veterans Affairs, formerly provided for at Section 25-11-10, et seq.;
(5) Commission on Women, formerly provided for at Section 1-15-10, et seq.;
(6) Commission on Aging, formerly provided for at Section 43-21-10, et seq.;
(7) Foster Care Review Board, formerly provided for at Section 20-7-2376, et seq.;
C. The State Law Enforcement Division
Section 1-30-120. Effective July 1, 1993, the following agencies, boards, and commissions, including all of the allied, advisory, affiliated, or related entities as well as the employees, funds, property and all contractual rights and obligations associated with any such agency, except for those subdivisions specifically included under another department, are hereby transferred to and incorporated in and shall be administered as part of the State Law Enforcement Division:
(A) Alcoholic Beverage Control Commission enforcement division, formerly provided for at Section 61-1-60, et seq.;
(B) State Law Enforcement Division, formerly provided for at Section 23-3-10, et seq."
Reference changed
SECTION 2. Section 1-1-110 of the 1976 Code is amended to read:
"Section 1-1-110. The executive department of this State is hereby declared to consist of the following officers, that is to say: The Governor and Lieutenant Governor, the Secretary of State, the State Treasurer, the Attorney General and the solicitors, the Adjutant General, the Comptroller General, the State Superintendent of Education, the Commissioner of Agriculture and the Director of the Department of Insurance."
Filling of vacancies revised
SECTION 3. Section 1-3-210 of the 1976 Code is amended to read:
"Section 1-3-210. During the recess of the Senate, vacancy which occurs in an office filled by an appointment of the Governor with the advice and consent of the Senate may be filled by an interim appointment of the Governor. The Governor must report the interim appointment to the Senate and must forward a formal appointment at its next ensuing regular session.
If the Senate does not advise and consent thereto prior to sine die adjournment of the next ensuing regular session, the office shall be vacant and the interim appointment shall not serve in hold over status notwithstanding any other provision of law to the contrary. A subsequent interim appointment of a different person to a vacancy created by a failure of the Senate to grant confirmation to the original interim appointment shall expire on the second Tuesday in January following the date of such subsequent interim appointment and the office shall be vacant."
Appointments by the Governor
SECTION 4. Chapter 3 of Title 1 of the 1976 Code is amended by adding:
"Section 1-3-215. (A) Appointments by the Governor requiring the advice and consent of the Senate must be transmitted to the Senate and must contain at a minimum the following information:
(1) the title of the office to which the individual is being appointed;
(2) the designation of any special seat, discipline, interest group or other designated entity that the individual is representing or is chosen from;
(3) the full legal name of the individual being appointed;
(4) the current street or mailing address and telephone number;
(5) the county, counties, district or other geographic area or political subdivision being represented;
(6) the name of the individual being replaced if the appointment is not an initial appointment; and
(7) the commencement and ending date of the term of office.
(B) When an appointment has been confirmed by the Senate, evidence of such confirmation shall be transmitted to the Secretary of State by the Clerk of the Senate and the Secretary of State must thereafter obtain the necessary oath and evidence of bond if required. The taking of the oath of office and filing of any requisite bond shall fully vest the person appointed with the full rights, privileges and powers of the office. The notice of confirmation transmitted by the Senate shall be conclusive as to the validity of an appointment and the issuance of a commission by the Secretary of State after obtaining the requisite documentation is a ministerial act."
Appointment procedure revised
SECTION 5. Section 1-3-220 of the 1976 Code is amended to read:
"Section 1-3-220. The following appointments shall be made by the Governor and are in addition to those appointments by the Governor authorized in other provisions in the Code:
(1) An appointment to fill any vacancy in an office of the executive department as defined in Section 1-1-110 occurring during a recess of the General Assembly. The term of such appointment shall be until the vacancy be filled by a general election or by the General Assembly in the manner provided by law.
(2) An appointment to fill any vacancy in a county office. The person so appointed shall hold office, in all cases in which the office is elective, until the next general election and until his successor shall qualify; and in the case of offices originally filled by appointment and not by election, until the adjournment of the session of the General Assembly next after such vacancy has occurred. The Governor may remove for cause any person so appointed by him under the provisions of this paragraph to fill any such vacancy.
(3) Proxies to represent the share of the State in the Cheraw and Coalfields Railroad Company and in the Cheraw and Salisbury Railroad Company.
(4) The chief constable of the State, whensoever in his judgment any public emergency shall require it or when necessary to the due execution of legal process."
Removal procedures revised
SECTION 6. Section 1-3-240 of the 1976 Code is amended to read:
"Section 1-3-240. (A) Any officer of the county or State, except:
(1) an officer whose removal is provided for in Section 3 of Article XV of the State Constitution; or
(2) an officer guilty of the offense named in Section 8 of Article VI of the Constitution; or
(3) pursuant to subsection (B) of this section, an officer of the State appointed by a Governor, either with or without the advice and consent of the Senate;
who is guilty of malfeasance, misfeasance, incompetency, absenteeism, conflicts of interest, misconduct, persistent neglect of duty in office, or incapacity shall be subject to removal by the Governor upon any of the foregoing causes being made to appear to the satisfaction of the Governor. But before removing any such officer, the Governor shall inform him in writing of the specific charges brought against him and give him an opportunity on reasonable notice to be heard.
(B) Any person appointed to a state office by a Governor, either with or without the advice and consent of the Senate, other than those officers enumerated in subsection (C), may be removed from office by the Governor at his discretion by an Executive Order removing the officer.
(C) Persons appointed to the following offices of the State may be removed by the Governor for malfeasance, misfeasance, incompetency, absenteeism, conflicts of interest, misconduct, persistent neglect of duty in office, or incapacity:
(1) Workers' Compensation Commission;
(2) Commission of the Department of Revenue and Taxation;
(3) Ethics Commission;
(4) Election Commission;
(5) Professional and Occupational Licensing Boards;
(6) Juvenile Parole Board;
(7) Probation, Parole and Pardon Board;
(8) Director of the Department of Public Safety;
(9) Board of the Department of Health and Environmental Control, excepting the Chairman;
(10) Chief of State Law Enforcement Division.
Upon the expiration of an officeholder's term, such individual may continue to serve until a successor has been appointed and qualifies."
Removal appeal procedures revised
SECTION 7. Section 1-3-250 of the 1976 Code is amended to read:
"Section 1-3-250. An officer, other than a state officer appointed by the Governor pursuant to subsection (B) of Section 1-3-240, shall have the right of appeal from any order of removal by the Governor under Section 1-3-240 to the resident or presiding judge of the circuit in which the officer resides. The judge shall hear and determine the appeal both as to law and fact upon the record as made before the Governor and upon such additional evidence as he shall see fit to allow. The notice of appeal shall be served upon the Governor, or his secretary, within five days after the service upon the officer of the order of the Governor removing him and shall state the grounds thereof and name the circuit judge to whom the appeal is taken. Thereupon the Governor shall forthwith transmit to the judge the record in the case, including a copy of the order of removal, grounds of removal, evidence in support thereof and return of service and any other matter which in his judgment may be considered by the court. The circuit judge shall within twenty days after the taking of the appeal, or in such shorter time as may be practical, hear and determine the appeal, after giving to the parties reasonable notice of the time and place of hearing. Appeal from the judgment of the circuit judge to the Supreme Court may be had as in any other appeal at law. The hearing may be had and judgment may be rendered in open court, or at chambers within or without the circuit."
Commission placed under Governor's Office
SECTION 8. Section 1-15-10 of the 1976 Code is amended to read:
"Section 1-15-10. There is hereby created a Commission on Women (the commission) to be composed of seven members appointed by the Governor with the advice and consent of the Senate from among persons with a competency in the area of public affairs and women's activities. The commission shall be under and a part of the Office of the Governor. Members of the commission shall serve for terms of four years and until their successors are appointed and qualify except of those first appointed after April 9, 1970, one member shall serve for a term of one year, two members shall serve a term of one year, two members shall serve a term of two years, two members shall serve for a term of three years and two members shall serve for a term of four years. Vacancies shall be filled in the manner of the original appointment for the unexpired portion of the term only. No member shall be eligible to serve more than two consecutive terms."
Reference changed
SECTION 9. Section 1-20-50(B)(5) of the 1976 Code, as last amended by Act 611 of 1990, is further amended to read:
"(5) South Carolina Coordinating Council for Economic Development [Abolished by creation of an Advisory Coordinating Council for Economic Development of the Department of Commerce]"
Reference changed
SECTION 10. Section 1-20-50(C)(1) is amended to read:
"(1) Insurance Commission [Abolished by creation of a Department of Insurance]"
Regulation process revised
SECTION 11. Section 1-23-110 of the 1976 Code, as last amended by Act 507 of 1992, is amended to read:
"Section 1-23-110. (A) Before the promulgation, amendment, or repeal of a regulation, an agency shall:
(1) give notice of a drafting period by publication of a notice in the State Register. The notice must include:
(a) the address to which interested persons may submit written comments during the initial drafting period before the regulations are submitted as proposed;
(b) a synopsis of what the agency plans to draft;
(c) the agency's statutory authority for promulgating the regulation;
(2) submit to the division, no later than the date the notice required in item (3) is published in the State Register, a preliminary assessment report prepared in accordance with Section 1-23-115 on regulations having a substantial economic impact;
(3) give notice of a public hearing at which the agency will receive data, views, or arguments, orally and in writing, from interested persons on proposed regulations by publication of a notice in the State Register if requested by twenty-five persons, by a governmental subdivision or agency, or by an association having not less than twenty-five members. The notice must include:
(a) the address to which written comments must be sent and the time period of not less than thirty days for submitting these comments;
(b) the date, time, and place of the public hearing which must not be held sooner than thirty days from the date the notice is published in the State Register;
(c) either the text or a synopsis of the proposed regulation;
(d) the statutory authority for its promulgation;
(e) a preliminary fiscal impact statement prepared by the agency reflecting estimates of costs to be incurred by the State and its political subdivisions in complying with the proposed regulation. A preliminary fiscal impact statement is not required for those regulations which are not subject to General Assembly review under Section 1-23-120;
(f) a summary of the preliminary assessment report submitted by the agency to the division and notice that copies of the preliminary report are available from the agency. The agency may charge a reasonable fee to cover the costs associated with this distribution requirement. A regulation that does not require an assessment report because it does not have a substantial economic impact, must include a statement to that effect. A regulation exempt from filing an assessment report pursuant to Section 1-23-115(E) must include an explanation of the exemption;
(g) a statement of the need and reasonableness of the regulation.
(B) Notices required by this section must be mailed by the promulgating agency to all persons who have made timely requests of the agency for advance notice of proposed promulgation of regulations.
(C) The agency shall consider fully all written and oral submissions respecting the proposed regulation.
(D) A proceeding to contest a regulation on the ground of noncompliance with the procedural requirements of this section must be commenced within one year from the effective date of the regulation."
Regulation process revised
SECTION 11A. Title 1, Chapter 23 of the 1976 Code, is amended by adding:
"Section 1-23-111. (A) When a public hearing is held pursuant to this article involving the promulgation of regulations by a department for which the governing authority is a single director, it shall be conducted by an administrative law judge assigned by the chief judge. When a public hearing is held pursuant to this article involving the promulgation of regulations by a department for which the governing authority is a board or commission, it shall be conducted by the board or commission, with the chairman presiding. The administrative law judge or chairman, as the presiding official, shall ensure that all persons involved in the public hearing on the regulation are treated fairly and impartially. The agency shall submit into the record the jurisdictional documents, including the statement of need and reasonableness, and any written exhibits in support of the proposed regulation. The agency may also submit oral evidences. Interested persons may present written or oral evidence. The presiding official shall allow questioning of agency representatives or witnesses, or of interested persons making oral statements, in order to explain the purpose or intended operation of the proposed regulation, or a suggested modification, or for other purposes if material to the evaluation or formulation of the proposed regulation. The presiding official may limit repetitive or immaterial statements or questions. At the request of the presiding official or the agency, a transcript of the hearing must be prepared
(B) After allowing all written material to be submitted and recorded in the record of the public hearing no later than five working days after the hearing ends, unless the presiding official orders an extension for not more than twenty days, the presiding official must issue a written report which must include findings as to the need and reasonableness of the proposed regulation and may include suggested modifications to the proposed regulations in the case of a finding of lack of need or reasonableness.
(C) If the presiding official determines that the need for or reasonableness of the proposed regulation has not been established, the agency must elect to:
(a) follow the suggested modifications of the presiding official and submit the proposed regulation for legislative approval pursuant to Section 1-23-120;
(b) not modify the proposed regulation but submit the proposed regulation as originally drafted for legislative approval pursuant to Section 1-23-120 with a copy of the presiding official's report attached; or
(c) withdraw the proposed regulation."
Content of regulation reports
SECTION 12. Section 1-23-115 of the 1976 Code, as last amended by Act 507 of 1992, is amended to read:
"Section 1-23-115. (A) Upon written request by two members of the General Assembly, a regulation that has a substantial economic impact must have an assessment report prepared pursuant to this section and in accordance with the procedures contained in this article.
(B) A state agency must submit to the State Budget and Control Board, Division of Research and Statistical Services, a preliminary assessment report on regulations which have a substantial economic impact. Upon receiving this report the division may require additional information from the promulgating agency, other state agencies, or other sources. A state agency shall cooperate and provide information to the division on requests made pursuant to this section. The division shall prepare and publish a final assessment report within sixty days after the public hearing held pursuant to Section 1-23-110. The division shall forward the final assessment report and a summary of the final report to the promulgating agency.
(C) At a minimum, the preliminary assessment report required by this section must disclose the effects of the proposed regulation on the public health and environmental welfare of the community and State and the effects of the economic activities arising out of the proposed regulation. Both the preliminary and final reports required by this section may include:
(1) a description of the regulation, the purpose of the regulation, the legal authority for the regulation, and the plan for implementing the regulation;
(2) a determination of the need for and reasonableness of the regulation and the expected benefit of the regulation;
(3) a determination of the costs and benefits associated with the regulation and an explanation of why the regulation is considered to be the most cost effective, efficient, and feasible means for allocating public and private resources and for achieving the stated purpose;
(4) the effect of the regulation on competition;
(5) the effect of the regulation on the cost of living and doing business in the geographical area in which the regulation would be implemented;
(6) the effect of the regulation on employment in the geographical area in which the regulation would be implemented;
(7) the source of revenue to be used for implementing and enforcing the regulation;
(8) a conclusion on the short-term and long-term economic impact upon all persons substantially affected by the regulation, including an analysis containing a description of which persons will bear the costs of the regulation and which persons will benefit directly and indirectly from the regulation;
(9) the uncertainties associated with the estimation of particular benefits and burdens and the difficulties involved in the comparison of qualitatively and quantitatively dissimilar benefits and burdens. A determination of the need for the regulation must consider qualitative and quantitative benefits and burdens;
(10) the effect of the regulation on the environment and public health;
(11) the detrimental effect on the environment and public health if the regulation is not implemented. An assessment report must not consider benefits or burdens on out-of-state political bodies or businesses. The assessment of benefits and burdens which cannot be precisely quantified may be expressed in qualitative terms. This subsection must not be interpreted to require numerically precise cost-benefit analysis. At no time is an agency required to include items (4) through (8) in a preliminary assessment report; however, these items may be included in the final assessment report prepared by the division.
(D) If information required to be included in the assessment report materially changes at any time before the regulation is approved or disapproved by the General Assembly, the agency must submit the corrected information to the division which must forward a revised assessment report to the Legislative Council for submission to the committees to which the regulation was referred during General Assembly review.
(E) An assessment report is not required on:
(1) regulations specifically exempt from General Assembly review by Section 1-23-120; however, if any portion of a regulation promulgated to maintain compliance with federal law is more stringent than federal law, then that portion is not exempt from this section;
(2) emergency regulations filed in accordance with Section 1-23-130; however, before an emergency regulation may be refiled pursuant to Section 1-23-130, an assessment report must be prepared in accordance with this section;
(3) regulations which control the hunting or taking of wildlife including fish or setting times, methods, or conditions under which wildlife may be taken, hunted, or caught by the public, or opening public lands for hunting and fishing."
Name changed
SECTION 13. Section 1-23-120(G)(3) of the 1976 Code, is amended to read:
"(3) by the South Carolina Department of Revenue and Taxation to adopt regulations, revenue rulings, revenue procedures, and technical advice memoranda of the Internal Revenue Service so as to maintain conformity with the Internal Revenue Code of 1954;"
Emergency regulation refiling provisions revised
SECTION 14. Section 1-23-130 of the 1976 Code, is amended to read:
"Section 1-23-130. (A) If an agency finds that an imminent peril to public health, safety, or welfare requires immediate promulgation of an emergency regulation before compliance with the procedures prescribed in this article or if a natural resources related agency finds that abnormal or unusual conditions, immediate need, or the state's best interest requires immediate promulgation of emergency regulations to protect or manage natural resources, the agency may file the regulation with the Legislative Council and a statement of the situation requiring immediate promulgation. The regulation becomes effective as of the time of filing.
(B) An emergency regulation filed under this section which has a substantial economic impact may not be refiled unless accompanied by the summary of the final assessment report prepared by the division pursuant to Section 1-23-115 and a statement of need and reasonableness is prepared by the agency pursuant to Section 1-23-111.
(C) If emergency regulations are either filed or expire while the General Assembly is in session, the emergency regulations remain in effect for ninety days only and may not be refiled; but if emergency regulations are both filed and expire during a time when the General Assembly is not in session they may be refiled for an additional ninety days.
(D) Emergency regulations and the agency statement as to the need for and reasonableness of immediate promulgation must be published in the next issue of the State Register following the date of filing. The summary of the final assessment report required for refiling emergency regulations pursuant to subsection (B) must also be published in the next issue of the State Register.
(E) An emergency regulation promulgated pursuant to this section may be permanently promulgated by complying with the requirements of this article."
Force and effect of certain regulations
SECTION 15. Section 1-23-160 of the 1976 Code, is amended to read:
"Section 1-23-160. All regulations of state agencies promulgated according to law and filed with the Secretary of State as of January 1, 1977, shall have the full force and effect of law. All regulations of state agencies promulgated under this article and effective as of June 30, 1994 shall have the full force and effect of law."
Definition to include Administrative Law Judge Division
SECTION 16. Section 1-23-310 of the 1976 Code, is amended to read:
"Section 1-23-310. As used in this article:
(1) `Agency' means each state board, commission, department or officer, other than the legislature or the courts, but to include the Administrative Law Judge Division, authorized by law to determine contested cases;
(2) `Contested case' means a proceeding, including but not restricted to ratemaking, price fixing, and licensing, in which the legal rights, duties or privileges of a party are required by law to be determined by an agency after an opportunity for hearing;
(3) `License' includes the whole or part of any agency permit, franchise, certificate, approval, registration, charter, or similar form of permission required by law, but it does not include a license required solely for revenue purposes;
(4) `Party' means each person or agency named or admitted as a party, or properly seeking and entitled as of right to be admitted as a party;
(5) `Person' means any individual, partnership, corporation, association, governmental subdivision, or public or private organization of any character other than an agency."
Court reference revised
SECTION 17. Section 1-23-320 of the 1976 Code, is amended to read:
"Section 1-23-320. (a) In a contested case, all parties must be afforded an opportunity for hearing after notice of not less than thirty days, except in proceedings before the Employment Security Commission, which shall be governed by the provisions of Section 41-35-680.
(b) The notice shall include:
(1) a statement of the time, place and nature of the hearing;
(2) a statement of the legal authority and jurisdiction under which the hearing is to be held;
(3) a reference to the particular sections of the statutes and rules involved;
(4) a short and plain statement of the matters asserted. If the agency or other party is unable to state the matters in detail at the time the notice is served, the initial notice may be limited to a statement of the issues involved. Thereafter, upon application, a more definite and detailed statement shall be furnished.
(c) Any party to such proceedings may cause to be taken the depositions of witnesses within or without the State and either by commission of de bene esse. Such depositions shall be taken in accordance with and subject to the same provisions, conditions and restrictions as apply to the taking of like depositions in civil actions at law in the court of common pleas; and the same rules with respect to the giving of notice to the opposite party, the taking and transcribing of testimony, the transmission and certification thereof and matters of practice relating thereto shall apply.
(d) The agency hearing a contested case may issue in the name of the agency subpoenas for the attendance and testimony of witnesses and the production and examination of books, papers and records on its own behalf or, upon request, on behalf of any other party to the case.
The administrative law judge division shall, on application of the agency enforce by proper proceedings the attendance and testimony of witnesses and the production and examination of books, papers and records and shall have the power to punish as for contempt of court, by a fine or imprisonment or both, the unexcused failure or refusal to attend and give testimony or produce books, papers and records as may have been required in any subpoena issued by the agency. The agency may issue to the sheriff of the county in which any hearing is held a warrant requiring him to produce at the hearing any witness who shall have ignored or failed to comply with any subpoena issued by the agency and duly served upon such witness. Such a warrant shall authorize the sheriff to arrest and produce at the hearing such witness, and it shall be his duty to do so; but the failure of a witness so to appear in response to any such subpoena may be excused on the same grounds as provided by law in the courts of this State as to the attendance of witnesses and jurors.
(e) Opportunity shall be afforded all parties to respond and present evidence and argument on all issues involved.
(f) Unless precluded by law, informal disposition may be made of any contested case by stipulation, agreed settlement, consent order or default.
(g) The record in a contested case shall include:
(1) all pleadings, motions, intermediate rulings and depositions;
(2) evidence received or considered;
(3) a statement of matters officially noticed;
(4) questions and offers of proof, objections and rulings thereon;
(5) proposed findings and exceptions;
(6) any decision, opinion or report by the officer or administrative law judge presiding at the hearing.
(h) Oral proceedings or any part thereof shall be transcribed on request of any party.
(i) Findings of fact shall be based exclusively on the evidence and on matters officially noticed."
Review of contested case final decisions
SECTION 18. Section 1-23-380 of the 1976 Code is amended to read:
"Section 1-23-380. (A) A party who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision in a contested case is entitled to judicial review under this article, Article 1, and Article 5. This section does not limit utilization of or the scope of judicial review available under other means of review, redress, relief or trial de novo provided by law. A preliminary, procedural, or intermediate agency action or ruling is immediately reviewable if review of the final agency decision would not provide an adequate remedy.
(1) Proceedings for review are instituted by filing a petition in the circuit court within thirty days after the final decision of the agency or, if a rehearing is requested, within thirty days after the decision thereon. Copies of the petition shall be served upon the agency and all parties of record.
(2) The filing of the petition does not itself stay enforcement of the agency decision. The agency may grant, or the reviewing court may order, a stay upon appropriate terms.
(3) Within thirty days after the service of the petition, or within further time allowed by the court, the agency shall transmit to the reviewing court the original or a certified copy of the entire record of the proceeding under review. By stipulation of all parties to the review proceedings, the record may be shortened. A party unreasonably refusing to stipulate to limit the record may be taxed by the court for the additional costs. The court may require or permit subsequent corrections or additions to the record.
(4) If, before the date set for hearing, application is made to the court for leave to present additional evidence, and it is shown to the satisfaction of the court that the additional evidence is material and that there were good reasons for failure to present it in the proceeding before the agency, the court may order that the additional evidence be taken before the agency upon conditions determined by the court. The agency may modify its findings and decision by reason of the additional evidence and shall file that evidence and any modifications, new findings, or decisions with the reviewing court.
(5) The review shall be conducted by the court without a jury and shall be confined to the record. In cases of alleged irregularities in procedure before the agency, not shown in the record, proof thereon may be taken in the court. The court, upon request, shall hear oral argument and receive written briefs.
(6) The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions or decisions are:
(a) in violation of constitutional or statutory provisions;
(b) in excess of the statutory authority of the agency;
(c) made upon unlawful procedure;
(d) affected by other error of law;
(e) clearly erroneous in view of the reliable, probative and substantial evidence on the whole record; or
(f) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.
(B) Review by an Administrative Law Judge of a final decision in a contested case decided by a professional and occupational licensing board within the Department of Labor, Licensing, and Regulation shall be done in the same manner prescribed in (A) for circuit court review of final agency decisions, with the presiding Administrative Law Judge exercising the same authority as the circuit court; provided, however, that a party aggrieved by a final decision of an Administrative Law Judge in such a case is entitled to judicial review of that decision by the circuit court under the provisions of (A) of this section and pursuant to Section 1-23-610(C)."
Administrative Law Judge Division
SECTION 19. Chapter 23, Title 1 of the 1976 Code is amended by adding:
"Article 5
South Carolina Administrative
Law Judge Division
Section 1-23-500. There is created the South Carolina Administrative Law Judge Division, which is an agency of the executive branch of the government of this State. Effective March 1, 1994, the division shall initially consist of three administrative law judges and shall consist of a total of six administrative law judges, effective on February 1, 1995. The administrative law judges shall be part of the State employees retirement system.
Section 1-23-510. (A) The judges of the division must be elected by the General Assembly in joint session, for a term of five years and until their successors are elected and qualify; provided, that of those judges initially elected, the chief judge, elected to Seat 1 must be elected for a term of five years, the judge elected to Seat 2 must be elected for a term of three years, the judge elected to Seat 3 must be elected for a term of one year. The remaining judges of the division must be elected for terms of office to begin February 1, 1995, for terms of five years and until their successors are elected and qualify; provided, that those judges elected to seats whose terms of office are to begin on February 1, 1995, to Seat 4 must be initially elected for a term of five years, the judge elected to Seat 5 must be initially elected for a term of three years, and the judge elected to Seat 6 must be initially elected for a term of one year. The terms of office of the judges of the division for Seats 1, 2, and 3 shall begin on March 1, 1994. The terms of office of the judges of the division for Seats 4, 5, and 6 shall begin on February 1, 1995. The terms of office of each of the seats shall terminate on the thirtieth day of June in the final year of the term for the respective seats.
(B) In electing administrative law judges, race, gender, and other demographic factors including age, residence, type of practice, and law firm size should be considered to assure nondiscrimination, inclusion, and representation to the greatest extent possible of all segments of the population of this State.
(C) Before election as an administrative law judge, a candidate must undergo screening pursuant to the provisions of Section 2-19-10, et seq.
(D) Each seat on the division must be numbered. Elections are required to be for a specific seat. The office of chief administrative law judge is a separate and distinct office for the purpose of an election.
(E) In the event that there is a vacancy in the position of the chief administrative law judge or for any reason the chief administrative law judge is unable to act, his powers and functions must be exercised by the administrative law judge occupying Seat 2.
Section 1-23-520. No person is eligible for the office of law judge of the division who does not at the time of his election meet the qualification for justices and judges as set forth in Article V of the Constitution of this State.
Section 1-23-525. No member of any General Assembly who is not otherwise prohibited from being elected to an administrative law judge position may be elected to such position while he is a member of the General Assembly and for a period of four years after he ceases to be a member of the General Assembly.
Section 1-23-530. The judges of the division shall qualify after the date of their election by taking the constitutional oath of office.
Section 1-23-540. The chief judge (Seat 1) shall receive as annual salary equal to ninety percent of that paid to the circuit court judges of this State. The remaining judges shall receive as annual salary equal to eighty percent of that paid to the circuit court judges of this State. They are not allowed any fees or perquisites of office, nor may they hold any other office of honor, trust, or profit. Administrative law judges in the performance of their duties are also entitled to that per diem, mileage, expenses, and subsistence as is authorized by law for circuit court judges.
Each administrative law judge shall devote full time to his duties as an administrative law judge, and may not practice law during his term of office, nor may he during this term be a partner or associate with anyone engaged in the practice of law in this State.
Section 1-23-550. All vacancies in the office of administrative law judge must be filled in the manner of original appointment. When a vacancy is filled, the judge elected shall hold office only for the unexpired term of his predecessor.
Section 1-23-560. Administrative law judges are bound by the Code of Judicial Conduct, as contained in Rule 501 of the South Carolina Appellate Court Rules. The State Ethics Commission is responsible for enforcement and administration of those rules pursuant to Section 8-13-320.
Section 1-23-570. The Chief Judge of the Administrative Law Judge Division is responsible for the administration of the division. The chief judge shall assign judges of the division to hear contested cases of the various state departments and commissions for which it is responsible on a general rotation and interchange basis by scheduling and assigning administrative law judges based upon subject matter no less frequently than every six months.
Section 1-23-580. (A) A clerk of the division, to be appointed by the chief judge, must be appointed and is responsible for the custody and keeping of the records of the division. The clerk of the division shall perform those other duties as the chief judge may prescribe.
(B) The other support staff of the division is as authorized by the General Assembly in the annual general appropriations act. The division may engage stenographers for the transcribing of the proceedings in which an administrative law judge presides. It may contract for these stenographic functions, or it may use stenographers provided by the agency or commission.
Section 1-23-590. The General Assembly in the annual general appropriations act shall appropriate those funds necessary for the operation of the Administrative Law Judge Division.
Section 1-23-600. (A) The hearings and proceedings concerning contested cases must be transcribed and are open to the public unless confidentiality is allowed or required by law. The presiding administrative law judge shall render the decision in a written order. The decisions or orders of these administrative law judges are not required to be published but are available for public inspection unless the confidentiality thereof is allowed or required by law.
(B) An administrative law judge of the division shall preside over all hearings of contested cases as defined in Section 1-23-310 involving the departments of the executive branch of government in which a single hearing officer is authorized or permitted by law or regulation to hear and decide such cases except those arising under the Occupational Safety and Health Act.
(C) Departments shall notify the Administrative Law Judge Division of all pending contested cases. Upon notification, the chief judge shall assign an administrative law judge to each contested case.
(D) An administrative law judge of the division also shall preside over all hearings of appeals from final decisions of contested cases before professional and occupational licensing boards or commissions within the Department of Labor, Licensing, and Regulation pursuant to Section 1-23-380.
(E) Notwithstanding the other provisions of this section, from July 1, 1993 until February 28, 1994, cases to which an administrative law judge would be assigned shall be heard and decided by a special hearing officer appointed by the governing authority of the appropriate department. A special hearing officer shall have the same duties and authority as an administrative law judge under the provisions of this article.
Section 1-23-610. (A) For quasi-judicial review of any final decision of an administrative law judge of cases involving departments governed by a board or commission authorized to exercise the sovereignty of the State, a petition by an aggrieved party must be filed with the appropriate board or commission and served on the opposing party not more than thirty days after the party receives the final decision and order of the administrative law judge. Appeal in these matters is by right. A party aggrieved by a final decision of a board in such a case is entitled to judicial review of that decision by the Circuit Court under the provisions of (A) of this section and pursuant to Section 1-23-610(C).
(B) For judicial review of any final decision of an administrative law judge of cases involving departments governed by a single director, a petition by an aggrieved party must be filed with the Circuit Court and served on the opposing party not more than thirty days after the party receives the final decision and order of the administrative law judge. Appeal in these matters is by right.
(C) For judicial review of any final decision of an administrative law judge of cases involving professional and occupational licensing boards within the Department of Labor, Licensing, and Regulation, a petition by an aggrieved party must be filed with the Circuit Court and served on the opposing party not more than thirty days after the party receives the final decision and order of the administrative law judge. Appeal in these matters is by right.
(D) The review of the administrative law judge's order must be confined to the record. The reviewing tribunal may affirm the decision or remand the case for further proceedings; or it may reverse or modify the decision if the substantive rights of the petitioner has been prejudiced because of the finding, conclusion, or decision is:
(a) in violation of constitutional or statutory provisions;
(b) in excess of the statutory authority of the agency;
(c) made upon unlawful procedure;
(d) affected by other error of law;
(e) clearly erroneous in view of the reliable, probative and substantial evidence on the whole record; or
(f) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.
Where appropriations in the annual general appropriations act, or where fees, fines, forfeitures or revenues imposed or collected by agencies or commissions were required to be used for the hearing of contested cases, such appropriations or monies must continue to be used for these purposes after the effective date of this article.
Section 1-23-630. Each of the law judges of the division has the same power at chambers or in open hearing as do circuit court judges, and to issue those remedial writs as are necessary to give effect to its jurisdiction.
Section 1-23-640. The division shall maintain its principal offices in the City of Columbia. However, judges of the division shall hear contested cases at the offices or location of the involved department or commission as prescribed by the agency or commission, or at suitable locations outside the City of Columbia as determined by the chief judge.
Section 1-23-650. Rules governing the administration of the Administration Law Judge Division shall be promulgated by the division. Rules governing procedures before the division, not otherwise expressed in Chapter 23 of Title 1 of the 1976 Code, shall be promulgated by the division and subject to review by the General Assembly as are rules of procedure promulgated by the Supreme Court under Article V of the Constitution.
Section 1-23-660. Any contested case docketed for hearing before a board or commission abolished by this act shall continue to be under the jurisdiction of such board or commission until the case reaches final disposition at a hearing, with any ruling or adjudication of the board or commission binding. The rules of procedure and review for such boards or commissions in effect on the date of filing of the pending action shall remain in effect until the final disposition of the pending action, other provisions of this chapter notwithstanding. Where a contested case pending before a board or commission abolished by this act is continued under the jurisdiction of such board or commission as provided in this section and where that board or commission is abolished as provided by this act, that board or commission notwithstanding such provision abolishing it shall nevertheless continue in existence for the sole purpose of conducting and bringing to final disposition all such cases. Where any member of that board or commission has assumed another office after the abolition of that board or commission, he shall be considered an ex officio member of his former board or commission for the purposes of this paragraph. Any member of a board or commission abolished who continues to serve in the manner and for the purposes provided by this paragraph is entitled to receive only that mileage, per diem, and subsistence paid to members of state boards, commissions, and committees."
Agency names revised
SECTION 20. Section 1-25-60(A) of the 1976 Code is amended to read:
"(A) For the purpose of coordinating state agency cooperation with the project, a State Interagency Planning and Evaluation Advisory Committee shall be formed consisting of the following members:
(1) The chief executive officer of the following state human services agencies and commissions:
(a) Department of Social Services
(b) Department of Health and Environmental Control
(c) Department of Mental Health
(d) Department of Alcohol and Other Drug Abuse Services
(e) Department of Vocational Rehabilitation
(f) Commission for the Blind
(g) Department of Disabilities and Special Needs
(h) Division on Aging
(2) A representative of the State Reorganization Commission, who shall serve as Chairman.
(3) A representative of two statewide private service agencies to be appointed by the committee chairman.
(4) A representative of the Governor's office designated annually by the Governor.
(5) Four persons representing human service clients, consumers or any other class, group or public or private entity that would substantially contribute to the purposes of the committee, to be appointed by these committee chairmen:
(a) Senate Finance Committee;
(b) Senate General Committee;
(c) House Ways and Means Committee;
(d) House Medical, Military, Public and Municipal Affairs Committee."
Name revised
SECTION 21. Section 2-7-71 of the 1976 Code is amended to read:
"Section 2-7-71. When any bill relating to state taxes is reported out of a standing committee of the Senate or House of Representatives for consideration, there must be attached and printed as a part of the committee report a statement of the estimated fiscal impact of the bill on the finances of the State signed by an authorized agent of the Department of Revenue and Taxation or his designee. As used in this section `statement of estimated fiscal impact' means the consensus opinion of the persons executing the required statement as to the increase or decrease in the net tax revenue to the State if the bill concerned is enacted by the General Assembly."
Name revised
SECTION 22. Section 2-7-73(A) of the 1976 Code is amended to read:
"(A) Any bill or resolution which would mandate a health coverage or offering of a health coverage by an insurance carrier, health care service contractor, or health maintenance organization as a component of individual or group policies, must have attached to it a statement of the financial impact of the coverage, according to the guidelines enumerated in subsection (B). This financial impact analysis must be conducted by the Division of Research and Statistical Services and signed by an authorized agent of the Department of Insurance, or his designee. The statement required by this section must be delivered to the Senate or House committee to which any bill or resolution is referred, within thirty days of the written request of the chairman of such committee."
Authorization of state highway bonds
SECTION 23. Section 2-7-105 of the 1976 Code is amended to read:
"Section 2-7-105. State capital improvement bonds may be authorized by the General Assembly in odd-numbered years. State highway bonds may be authorized by the General Assembly in even-numbered years."
Names changed
SECTION 24. Section 2-13-190 of the 1976 Code is amended to read:
"Section 2-13-190. Within five days after receiving such page proofs corrected from the Code Commissioner, the Office of Legislative Printing and Information Technology Resources (LPITR) shall print the same and shall deliver as many copies to the Code Commissioner as the commissioner may order. The Code Commissioner on receipt of such copies shall send a copy to each of the following officers: The Governor, Supreme Court Justices, Clerk of the Supreme Court, Court of Appeals Judges, Clerk of the Court of Appeals, circuit judges, circuit solicitors, county judges, county solicitors, clerk of the court of each county, judge of probate of each county, Attorney General, Secretary of State, Comptroller General, Adjutant General, State Treasurer, Chief Bank Examiner, Department of the Revenue and Taxation, Director of the Department of Transportation, State Health Officer, Director of the Department of Natural Resources, Chairman of the Public Service Commission, Commissioner of Agriculture, Director of the Department of Insurance, State Budget and Control Board, State Superintendent of Education, State Librarian, Clerk of the House of Representatives, Clerk of the Senate, Director of the South Carolina Archives Department, and the members of the General Assembly. Any magistrate may obtain a copy of advance sheets of statutes by sending his name, address, and term to the Code Commissioner."
Names changed
SECTION 25. Section 2-13-240 of the 1976 Code is amended to read:
"Section 2-13-240. (a) Sets of the Code of Laws of South Carolina, 1976, shall be distributed by the Legislative Council as follows: Governor, three; Lieutenant Governor, two; Secretary of State, three; Treasurer, one; Attorney General, fifty; Adjutant General, one; Comptroller General, two; Superintendent of Education, two; Commissioner of Agriculture, two; each member of the General Assembly, one; office of the Speaker of the House of Representatives, one; Clerk of the Senate, one; Clerk of the House of Representatives, one; each committee room of the General Assembly, one; each member of the Legislative Council, one; Code Commissioner, one; Legislative Council, ten; Supreme Court, fourteen; Court Administration Office, five; each circuit court judge, one; each circuit court solicitor, one; each family court judge, one; each county court judge, one; College of Charleston, one; The Citadel, two; Clemson University, three; Francis Marion College, one; Lander College, one; Medical University of South Carolina, two; South Carolina State College, two; University of South Carolina, four; each regional campus of the University of South Carolina, one; University of South Carolina Law School, forty-six; Winthrop College, two; each technical college or center, one; each county governing body, one; each county clerk of court and register of mesne conveyances where such offices are separate, one; each county auditor, one; each county coroner, one; each county magistrate, one; each county master in equity, one; each county probate judge, one; each county public library, one; each county sheriff, one; each public defender, one; each county superintendent of education, one; each county treasurer, one; Library of Congress, three; United States Supreme Court, one; each member of Congress from South Carolina, one; each state library which furnishes this State a free set of its Code of Laws, one; Division of Aeronautics of the Department of Commerce, one; Department of Alcohol and other Drug Abuse Services, one; Department of Archives and History, one; Board of Bank Control, one; Commissioner of Banking, one; Budget and Control Board (Auditor, six; General Services Division, six; Personnel Division, one; Research and Statistical Services Division, one; Retirement System, one); Children's Bureau, one; Department of Consumer Affairs, one; Department of Corrections, two; Criminal Justice Academy, one; Department of Commerce, five; Employment Security Commission, two; Ethics Commission, one; Forestry Commission, one; Department of Health and Environmental Control, five; Department of Transportation, five; Department of Public Safety, five; Human Affairs Commission, one; Workers' Compensation Commission, seven; Department of Insurance, two; Department of Juvenile Justice and Aftercare, one; Department of Labor, Licensing and Regulation, two; South Carolina Law Enforcement Division, four; Legislative Audit Council, one; State Library, three; Department of Mental Health, three; Department of Disabilities and Special Needs, five; Ports Authority, one; Department of Probation, Parole and Pardon, two; Public Service Commission, three; Reorganization Commission, one; Department of Social Services, two; Department of Revenue and Taxation, six; Board for Technical and Comprehensive Education, one; Veterans' Affairs Division of the Governor's office, one; Vocational Rehabilitation, one; Department of Natural Resources, four.
(b) If any technical college or center offers a course in paralegal practice such college or center shall be allowed two additional sets of the Code.
(c) All remaining copies of the Code may be sold or distributed in the best interest of the State as may be determined by the Legislative Council.
(d) The provisions of Sections 8-15-30 and 8-15-40 of the 1976 Code shall not apply to members of the General Assembly, members of the Legislative Council and the Code Commissioner."
Name changed
SECTION 26. Section 2-15-61 of the 1976 Code is amended to read:
"Section 2-15-61. For the purposes of carrying out its audit duties under this chapter, the Legislative Audit Council shall have access to the records and facilities of every state agency during that agency's operating hours with the exception of reports and returns of the South Carolina Department of Revenue and Taxation as provided in Sections 12-7-1680 and 12-35-1530."
Other officials added
SECTION 27. Section 2-17-15 of the 1976 Code is amended to read:
"Section 2-17-15. (A) The Governor, the Lieutenant Governor, any other statewide constitutional officer, a member of the General Assembly, a director or deputy director of a state department appointed by the Governor and a member of the immediate family of any of these public officials may not serve as a lobbyist during the time the official holds office and for one year after such public service ends.
(B) The provisions of this section apply to the Governor, the Lieutenant Governor, or any other statewide constitutional officer who is elected after December 31, 1993, or any member of the General Assembly who is elected after December 31, 1991, and any director or deputy director of a state department appointed after June 30, 1993."
Screening procedures revised
SECTION 28. Section 2-19-30 of the 1976 Code is amended to read:
"Section 2-19-30. Upon completion of the investigation, the chairman of the joint committee shall schedule a public hearing concerning the qualifications of the candidates. Such hearings shall be conducted no later than two weeks prior to the date set in the election resolution for such election. Any person who desires to testify at the hearing, including candidates, shall furnish a written statement of his proposed testimony to the chairman of the joint committee. Such statements shall be furnished no later than forty-eight hours prior to the date and time set for the hearing. The joint committee shall determine the persons who shall testify at the hearing. All testimony, including documents furnished to the joint committee, shall be submitted under oath and persons knowingly furnishing false information either orally or in writing shall be subject to the penalties provided by law for perjury and false swearing. During the course of the investigation, the joint committee may schedule an executive session at which each candidate, and other persons whom the committee wishes to interview, may be interviewed by the joint committee on matters pertinent to the candidate's qualification for the office to be filled. A reasonable time thereafter the committee shall render its tentative findings as to whether the candidate is qualified for the office to be filled and its reasons therefor as to each candidate.
As soon as possible after the completion of the hearing, a verbatim copy of the testimony, documents submitted at the hearing, and findings of fact shall be transcribed and published in the Journals of both houses or otherwise made available in a reasonable number of copies to the members of both houses prior to the date of the scheduled election, and a copy thereof shall be furnished to each candidate.
A candidate may withdraw at any stage of the proceedings and in such event no further inquiry, report on, or consideration of his candidacy shall be made."
Prohibition against pledging expanded
SECTION 29. Section 6, Part IV of Act 610 of 1990 is designated as Section 2-19-70 of the 1976 Code and is amended to read:
"Section 2-19-70. No candidate for judicial office may seek directly or indirectly the pledge of a member of the General Assembly's vote until the qualifications of all candidates for that office have been determined by the judicial screening committee, nor may a member offer the pledge until the qualifications of all candidates for that office have been determined by the judicial screening committee. For purposes of this section, indirectly seeking a pledge means the candidate or someone acting on behalf of and at the request of the candidate requesting a person, before screening, to contact a member of the General Assembly on behalf of the candidate. The prohibitions of this section do not extend to an announcement of candidacy by the candidate and statements by the candidate detailing the candidate's qualifications.
Violations of this section may be considered by the screening committee when it considers the candidate's qualifications."
Name changed
SECTION 30. Section 2-22-20 of the 1976 Code is amended to read:
"Section 2-22-20. The committee has the responsibility for coordination of all public aquaculture and mariculture development in this State. In an effort to eliminate duplication and to ensure use of appropriated monies in the most efficient manner, the committee shall establish an interagency advisory staff whose director must be appointed by the committee. Agencies and institutions represented on the staff shall include: the Department of Agriculture, the Department of Health and Environmental Control, Clemson University, the University of South Carolina, South Carolina Department of Natural Resources, S.C. Sea Grant Consortium, and the Coastal division of the Department of Health and Environmental Control.
State agencies and institutions are directed to, within their fiscal capabilities, make appropriate resources and personnel available to the committee for input and assistance upon request by the committee."
Name changed
SECTION 31. Section 2-23-10 of the 1976 Code is amended to read:
"Section 2-23-10. There is created a permanent joint legislative committee to conduct a continuing study of the insurance industry and related laws. The committee is composed of sixteen members. Five members must be appointed from the House of Representatives by its Speaker, five members must be appointed from the Senate by its President, and five members must be appointed by the Governor. The Director of the Department of Insurance shall serve as an ex officio member. None of the Governor's appointees may be members of the General Assembly. At its first meeting the committee shall organize by selecting from its membership a chairman, vice-chairman, secretary, and other officers the committee may determine. The committee shall meet on the call of the chairman or a majority of the members. Terms of committee members who are members of the General Assembly are coterminous with their terms of office. Appointees of the Governor must be appointed for terms of two years and until their successors are appointed. The committee shall report its findings and recommendations annually as soon as practicable after the convening of the General Assembly."
Joint Bond Review Committee to regulate starting date of certain highway projects
SECTION 32. Chapter 47, Title 2 of the 1976 Code, is amended by adding:
"Section 2-47-60. The Joint Bond Review Committee is hereby authorized and directed to regulate the starting date of the various projects approved for funding through the issuance of state highway bonds so as to ensure that the sources of revenue for debt service on such bonds shall be sufficient during the current fiscal year."
Reference revised
SECTION 33. Section 2-67-10 of the 1976 Code is amended to read:
"Section 2-67-10. There is created a nine member joint committee of the General Assembly to be known as the Joint Liaison Committee on Small Business. Two members must be appointed from the Senate Labor, Commerce and Industry Committee by the chairman thereof and two members must be appointed from the House Labor, Commerce and Industry Committee by the chairman thereof. One member must be appointed from Senate Finance Committee by the chairman thereof and one member must be appointed from the House Ways and Means Committee by the chairman thereof. One member must be appointed by the Governor which member shall represent the small business community. Additionally, the chairman of the Governor's Small and Minority Business Expansion Council and the Director of the Department of Commerce shall serve ex officio and may designate persons to represent them at meetings of the committee. Terms of the legislative members of the committee are coterminous with their elected terms as members of the General Assembly. The term of the member appointed by the Governor representing the small business community shall be for four years and until his successor is appointed and qualifies. Vacancies must be filled in the manner of original appointment for the remainder of the unexpired term."
Name changed
SECTION 34. Section 2-67-30 of the 1976 Code is amended to read:
"Section 2-67-30. The members of the committee shall meet as soon as practicable after their appointment and shall elect a chairman, vice-chairman, and other officers as they consider necessary. The committee at its first meeting shall also adopt rules for the purpose of governing its internal proceedings. The committee shall meet at least quarterly and at other times as may be designated by the chairman.
Members of the committee shall receive the usual mileage, per diem, and subsistence as provided by law for members of state boards, commissions, and committees to be paid from approved accounts from both houses.
All other expenses of the committee must be defrayed from the budget of the Department of Commerce, which shall also provide staff support and assistance to the committee."
Cultural agencies study
SECTION 35. Chapter 68 of Title 2 of the 1976 Code is amended by adding:
"Section 2-68-50. The Joint Legislative Committee on Cultural Affairs shall conduct a study of cultural agencies and report to the General Assembly no later than March 1, 1994, on the advisability of those agencies remaining independent or being combined with other related agencies, departments, or divisions. The agencies the committee shall study include, but are not limited to, the South Carolina Arts Commission, the Department of Archives and History, the Confederate Relic Room, the Old Exchange Commission, the State Library, and the State Museum. In addition, the committee shall include in its study a recommendation of whether or not the Patriot's Point Development Authority should become a division of the Department of Parks, Recreation and Tourism."
Name changed
SECTION 36. Section 3-3-210 of the 1976 Code is amended to read:
"Section 3-3-210. Subject to the rights of the South Carolina Department of Natural Resources or its successors to lease and subject to the rights of the people of the State to gather oysters and other shellfish on any of the lands hereinafter described, there has been granted to the United States all of the marshlands, sand banks, shores, edges and lands uncovered by water at low tide which are included within the outside boundaries of the premises hereinafter described or which are contiguous and adjacent to such boundaries, to wit:
(1) All that plantation or tract of land containing a body of marshland, in all seven thousand five hundred and sixty-eight (7,568) acres, situate in and around Bull Bay, in the county of Charleston, embracing those islands known as White Banks, being the premises granted to Richard T. Morrison, September 1, 1860, by grants recorded in book Q No. 6, pages 218 and 219, in the office of the Secretary of State, plats of which tracts are also recorded in volume 57, page 429 and page 430, in the office of the Secretary of State;
(2) All those fifteen islands, together containing sixteen thousand nine hundred and ninety-two (16,992) acres, situate near Bull Bay in Charleston County, which islands as a group bound east on the Atlantic Ocean, to the west partly on Bull Bay, to the northward on creeks and marshes, names unknown, and to the southward on Raccoon Keys, being the islands granted to John Bowman, August 1, 1791, by grant recorded in grant book No. 5, page 205, in the office of the Secretary of State aforesaid, and subsequently conveyed to H. P. Jackson by deed recorded in book Y-20, page 216, in the R.M.C. office for Charleston County aforesaid, a plat of which islands is recorded in plat book 1, page 205, in the office of the Secretary of State aforesaid and also in plat book B, page 136, in the R.M.C. office aforesaid;
(3) All that tract of land, marsh and sandbank, known as the Casinas, containing three hundred and sixty (360) acres, more or less, near Cape Romain in Charleston County, being the tract granted to John Lee, William Lee and Charles E. Lee, August 3, 1840, by grant recorded in grant book O No. 6, page 485, in the office of the Secretary of State aforesaid, and subsequently conveyed to Henry P. Jackson, by deed recorded in book Y-20, page 214, in the R.M.C. office aforesaid, a plat of which tract is recorded in volume 42, page 68, in the office of the Secretary of State aforesaid and in book B, page 133, in the R.M.C. office aforesaid;
(4) All that tract of land known as Cape Romain and Bird Bank containing nine hundred and seventy (970) acres, situated in Charleston County, being the premises granted to John Lee, William Lee and Charles E. Lee, by grant recorded in grant book O No. 6, page 486, in the office of the Secretary of State aforesaid and subsequently conveyed to H. P. Jackson by deed recorded in book Y-20, page 215, in the R.M.C. office aforesaid, a plat of which is recorded in plat book B, page 131, in the R.M.C. office aforesaid;
(5) All that tract of land containing five thousand five hundred and sixty (5,560) acres on an island known as Big and Little Raccoon Keys, situate in Charleston County, which island bounds eastward on Cape Romain Inlet, southward on the Atlantic Ocean and westward on Bull Bay, being the island granted to John Vinyard, October 7, 1816, by grant recorded in volume 61, page 86, in the office of the Secretary of State aforesaid, and subsequently conveyed to H. P. Jackson by deed recorded in book Y-20, page 213, in the R.M.C. office aforesaid; and
(6) All that tract of land and marshland containing one thousand and forty (1,040) acres, more or less, situate in Christ Church Parish in Charleston County, bounded on the north and northeast by Palmetto Creek, to the north and northwest by lands late of the estate of Whitesides, C. B. Northrop, Hodge and Kelly, south and southwest by lands late of Moses Whitesides, Esq., south and southeast by a creek known as No Man's Friend Creek, being the tract granted to C. B. Northrop, July 2, 1855, by grant recorded in book Q No. 6, page 67, in the office of the Secretary of State and subsequently conveyed to H. P. Jackson by deed recorded in book Y-20, page 217, in the R.M.C. office aforesaid, a plat of which tract is recorded in State record volume 43, page 270, and also in book B, page 132, in the R.M.C. office aforesaid.
Jurisdiction; migratory bird refuge.--Subject to the rights of the South Carolina Department of Natural Resources as provided above the United States shall have exclusive jurisdiction on the lands so granted for the purpose of carrying out the provisions of the act of Congress approved February 18, 1929, known as the `Migratory Bird Conservation Act' and all acts hereafter amendatory thereof, and for the purpose of the preservation and conservation of all migratory birds which are or hereafter may be under the jurisdiction of the United States.
Service of process.--Nothing contained in said grant shall be construed to exclude or prevent any process, civil or criminal, issuing from the courts of this State from being served or executed within the limits of said grant.
Reverter when no longer used for game refuge.--The lands so granted shall revert to the State in the event the United States shall cease to use said lands for the purpose of a migratory bird refuge.
Consent to conveyance of part of such lands.--The consent of the State has also been given to the conveyance by the United States or its duly authorized agency, to I. W. Limbaker of tract `A,' as shown on plat of the Intercoastal Waterway, Winyah Bay-Charleston, Canal Prism and Spoil Disposal Areas, prepared by the United States engineer office, Charleston, South Carolina, February 6, 1939, and on file in the United States engineer office aforesaid in file No. 42-4, said tract `A' having been a portion of the lands granted the United States as aforesaid, in exchange for the conveyance by I. W. Limbaker to the United States or its duly authorized department, or tract `B,' as shown on said plat, the granting clause of said conveyance from I. W. Limbaker reading as follows:
`That the said deeded land shall revert to the State of South Carolina in the event the United States of America ceases to use the said lands for the purpose of a migratory bird refuge.' And it is hereby specifically declared that said tract `A' shall not revert to the State on account of said conveyance, but having been conveyed to I. W. Limbaker as so authorized, shall be freed of the provision for reversion contained in the cession of said property to the United States."
Reference revised
SECTION 37. Section 3-5-40 of the 1976 Code is amended to read:
"Section 3-5-40. If the title to any part of the lands, including submerged lands, property or property rights, required by the United States Government for the construction and maintenance of the aforesaid intracoastal waterway from Winyah Bay, South Carolina, to the State boundary line in the Savannah River and any changes, modifications or extensions thereto and any tributaries thereof, and the Ashley River and Shipyard River projects shall be in any private person, firm or corporation, telephone or telegraph company or other public service corporation or shall have been donated or condemned for public or public service purposes by any political subdivision of this State or any public service corporation, the South Carolina Department of Health and Environmental Control may, acting for and in behalf of the State, secure the above described rights of way and spoil disposal areas for such intracoastal waterway and all its tributaries and for the Ashley River and Shipyard River projects upon, across and through such lands, including submerged lands, or any part thereof, including oyster beds, telephone and telegraph lines, railroad lines, property of other public service corporations and other property and property rights, by purchase, donation or otherwise, through agreement with the owner when possible. And when any such easement or property is thus acquired the Governor and the Secretary of State shall execute a deed for it to the United States."
References revised
SECTION 38. Section 3-5-50 of the 1976 Code is amended to read:
"Section 3-5-50. If for any reason the South Carolina Department of Health and Environmental Control is unable to secure any rights-of-way and spoil disposal area upon, across, or through any such land, including submerged lands, property, or rights, by voluntary agreement with the owner, the South Carolina Department of Health and Environmental Control, acting for and in behalf of the State may condemn it."
Reference revised
SECTION 39. Section 3-5-60 of the 1976 Code is amended to read:
"Section 3-5-60. If the United States Government shall so determine, it may condemn and use all lands, including submerged lands, property and property rights which may be needed for the purposes set forth in Section 3-5-40 under the authority of the United States Government and according to the provisions existing in the Federal statutes for condemning lands and property for the use of the United States Government. In case the United States Government shall so condemn such lands, including submerged lands, property and property rights, the South Carolina Department of Health and Environmental Control may pay all expenses of such condemnation proceedings and any award that may be made thereunder out of any monies appropriated for such purposes."
Reference revised
SECTION 40. Section 3-5-80 of the 1976 Code is amended to read:
"Section 3-5-80. For the purpose of determining the lands, easements and property necessary for the uses herein set out, the South Carolina Department of Health and Environmental Control or the United States Government, or the agents of either, may enter upon any lands along the general line of the rights of way for the purposes of locating definitely the specific lines of such rights of way and the land required for such purposes and there shall be no claim against the State or the United States for such acts as may be done in making such surveys."
References revised
SECTION 41. Section 3-5-100 of the 1976 Code is amended to read:
"Section 3-5-100. If any of the lands or property, the use of which is acquired for the rights-of-way and spoil disposal areas has been leased by the South Carolina Department of Natural Resources to any person for the cultivation and gathering of oysters, the Department of Natural Resources shall substitute for the leased areas lying within the rights-of-way and spoil disposal areas other equal areas lying without the rights-of-way and spoil disposal areas that also are suitable for the cultivation and gathering of oysters. The Department of Health and Environmental Control may reimburse the person for any direct actual losses resulting from the transfer of leased oyster beds. If for any reason the Department of Natural Resources is unable to reach an agreement with the owner of the leased oyster beds, the Department of Health and Environmental Control, acting for the State, may condemn the rights and property of the lessees in the leased areas."
References revised
SECTION 42. Section 3-5-120 of the 1976 Code is amended to read:
"Section 3-5-120. If and when any such oyster beds or oysters growing therein shall have been damaged by muddy water or by other effects of such dredging operations any person holding such oyster beds in fee simple or in leasehold or owning the oysters growing therein or any person engaged in the prosecution of the work of constructing the waterway shall be privileged to apply to the South Carolina Department of Health and Environmental Control to survey such oyster beds and oysters and to determine the extent and amount of such damage. Upon any such application, the Department of Health and Environmental Control shall proceed promptly to survey the damage done to such oyster beds and oysters and to determine the identity of the person causing such damage and the identity of the owner in fee or in leasehold of such oyster beds and oysters suffering such damage. The South Carolina Department of Health and Environmental Control may subpoena witnesses to assist in the determination of such facts. The department of Health and Environmental Control must afford the owner of the alleged damaged oyster beds and oysters and the person alleged to have caused the damage an opportunity to be heard."
Damage determination revised
SECTION 43. Section 3-5-130 of the 1976 Code is amended to read:
"Section 3-5-130. Staff of the Coastal Division of the Department of Health and Environmental Control shall make a determination of the amount of actual damage."
Review of damage determinations
SECTION 44. Section 3-5-140 of the 1976 Code is amended to read:
"Section 3-5-140. If the person in whose favor or the person against whom such determination is made shall be dissatisfied therewith, such person may apply to an Administrative Law Judge to review the determination. An appeal from the decision of the Administrative Law Judge may be taken to the Coastal Zone Management Appellate Panel. An appeal from the decision of the Panel may be taken to the court of common pleas for the county in which the oyster beds lie. The Court shall review the award in the same manner as reports of a master in equity are reviewed by the court and the determination of the amount of the award by the court of common pleas shall be final.
Before a review shall be granted to the person against whom the award is made, such person shall pay to the person in whose favor the award is made, one half of the amount of the said award, and shall file with the said clerk of court a bond conditioned for the payment of the remaining half of the award or so much thereof as may be finally awarded, such bond to be approved by the clerk of court of the county in which the oyster beds lie as to form, surety and amount.
The final award shall be entered on record in the office of the clerk of court of common pleas for the county in which the oyster beds lie and when so entered shall have the force and effect of a judgment. The amount of the award shall be limited to the direct actual damage suffered by the person owning in fee or in leasehold the oyster beds and the oysters growing therein."
Costs to be repaid
SECTION 45. Section 3-5-150 of the 1976 Code is amended to read:
"Section 3-5-150. Upon the filing with the clerk of court of any such award there shall be added thereto as a part thereof the costs of the survey held to determine the damage resulting in such award. Such costs shall be repaid to the Department of Health and Environmental Control by the person against whom the award is given. If it shall be finally determined that no damage has been done the cost of the survey shall be paid by the person requesting the survey."
Name change
SECTION 46. Section 3-5-160 of the 1976 Code is amended to read:
"Section 3-5-160. The Department of Health and Environmental Control shall account for all monies recovered under the provisions of Sections 3-5-110 to 3-5-150 to the State Treasurer."
Name change
SECTION 47. Section 3-5-170 of the 1976 Code is amended to read:
"Section 3-5-170. Should any person cultivating oysters upon an area leased from the State outside of the limits to be acquired for said waterway project from Winyah Bay to the state boundary line in the Savannah River elect, in lieu of claiming damages which might be done to such oysters by dredging operations, to transfer such cultivated oysters to a different leased area and the person whose dredging operations in the construction of said intracoastal waterway either shall have damaged or might damage such oysters agrees to pay the expenses of such removal, the South Carolina Department of Natural Resources may substitute for such leased areas other equal areas suitable for the cultivation and gathering of oysters in a location not subject to damage by dredging operation."
Name change
SECTION 48. Section 3-5-190 of the 1976 Code is amended to read:
"Section 3-5-190. Any person, his heirs, executors, administrators, successors or assigns, who may be compensated for damage to oysters during the construction or maintenance of said intracoastal waterway and its tributaries and the Ashley River and Shipyard River projects, whether by the Department of Health and Environmental Control, the contractor engaged on the work or the United States, shall be estopped from making further claim for damage to oysters in or upon the same area on account of dredging operations during maintenance or further improvement of the waterway and its tributaries or Ashley River or Shipyard River."
Name change
SECTION 49. Section 3-5-320 of the 1976 Code is amended to read:
"Section 3-5-320. If the title to any part of the lands required by the United States Government for the construction of the aforesaid inland waterway from the North Carolina-South Carolina State line at Little River to Winyah Bay shall be in any private person, company, firm or corporation, railroad company, canal company, telephone or telegraph company or other public service corporation or shall have been donated or condemned for any such use by any political subdivision of this State, the Department of Health and Environmental Control may, acting for and in behalf of the State, secure a right of way of the width aforesaid for such inland waterway upon, across and through such lands or any part thereof by purchase, donation or otherwise, through agreement with the owner when possible, and when any such property is thus acquired the Governor and the Secretary of State shall execute a deed for it to the United States."
References revised
SECTION 50. Section 3-5-330 of the 1976 Code is amended to read:
"Section 3-5-330. If for any reason the Department of Health and Environmental Control is unable to secure the right-of-way upon, across, or through the property by voluntary agreement with the owner, the Department of Health and Environmental Control acting for the State, may condemn the right-of-way. The Governor and the Secretary of State shall promptly execute a deed for the condemned property to the United States."
Name change
SECTION 51. Section 3-5-340 of the 1976 Code is amended to read:
"Section 3-5-340. If the United States Government shall so determine, it may condemn and use all lands and property which may be needed for the purposes set forth in Section 3-5-310 under the authority of the United States Government and according to the provisions existing in the Federal statutes for condemning lands and property for the use of the United States Government. In case the United States Government shall so condemn such lands and property, the Department of Health and Environmental Control may pay all expenses of the condemnation proceedings and any award that may be made thereunder out of any moneys appropriated or which may be appropriated for such purposes."
Name change
SECTION 52. Section 3-5-360 of the 1976 Code is amended to read:
"Section 3-5-360. For the purpose of determining the lands and property necessary for the uses herein set out the Department of Health and Environmental Control or the United States Government, or the agents of either, may enter upon any lands along the general line of said right of way and make such surveys and do such other acts as in their judgment may be necessary for the purpose of definitely locating the specific lines of said right of way and the lands required for said purposes and there shall be no claim against the State or the United States for such acts as may be done in making such surveys."
Name changed
SECTION 53. Section 4-9-155 of the 1976 Code is amended to read:
"Section 4-9-155. (A) The annual audit of the offices of the county assessor, auditor, treasurer, and tax collector must be conducted in accordance with the standards set forth by the Comptroller General of the United States as published in a volume entitled Government Auditing Standards and the manual and guide prescribed by the South Carolina Department of Revenue and Taxation. The Department of Revenue and Taxation manual and guide must set forth necessary items, entries, transactions, and other data for the accountant to closely examine in the audit of the offices of the county assessor, county auditor, county treasurer, and county tax collector. A copy of the audit of each of these offices must be provided by the accountant to the Department of Revenue and Taxation and Comptroller General of this State.
(B) Any county in which the governing body fails to require the annual audit to be conducted as required in this section is subject to the penalty provisions of Section 12-43-260, and the Department of Revenue and Taxation upon determining that this failure occurred shall take the actions provided in Section 12-43-260 to impose the penalties provided therein.
(C) The provisions of this section are applicable for tax years beginning after December 31, 1992."
Name changed
SECTION 54. Section 4-10-25 of the 1976 Code is amended to read:
"Section 4-10-25. The gross proceeds of sales of tangible personal property delivered after the imposition date of the tax levied under Section 4-10-20 in a county, either under the terms of a construction contract executed before the imposition date, or a written bid submitted before the imposition date, culminating in a construction contract entered into before or after the imposition date, are exempt from the local sales and use tax provided in Section 4-10-20 if a verified copy of the contract is filed with the South Carolina Department of Revenue and Taxation within six months after the imposition of the local sales and use tax."
Name changed
SECTION 55. Section 4-10-60(D) of the 1976 Code is amended to read:
"(D) The provisions of subsection (A) do not apply if the total number of county areas adopting the sales and use tax authorized by this chapter, which are projected by the Department of Revenue and Taxation to collect five million dollars or more, generated fifty percent or less during the most currently available fiscal year of the total statewide collections from the levy of a one percent sales and use tax, then those county areas generating five million dollars or more must be assessed five percent of the amount generated in the county area, and that amount must be used as a supplement to those county areas generating less than the minimum distribution. The supplement to those county areas generating less than the minimum distribution must be distributed so that each county area receives an amount equal to what its percentage of population bears to the total population in all of the county areas generating less than the minimum distribution which have implemented the sales and use tax authorized by this chapter. Once the amount of the supplement has been determined for each of the county areas to be supplemented, then the supplement must be distributed to the eligible units within the county area based on population as provided for in this chapter. However, the supplement to the county area combined with collections within the county area may not exceed the minimum distribution."
Name changed
SECTION 56. Section 4-10-80 of the 1976 Code is amended to read:
"Section 4-10-80. Annually by August fifteenth the State Treasurer shall report to the county chief administrative officers, county treasurers, and municipal clerks in those county areas which levy the sales and use tax authorized by this chapter the total amount of revenue collected as reported by the Department of Revenue and Taxation in the county area for the preceding fiscal year."
Name changed
SECTION 57. Section 4-10-90 of the 1976 Code is amended to read:
"Section 4-10-90. (A) The Department of Revenue and Taxation shall administer and collect the local sales and use tax in the manner that sales and use taxes are administered and collected pursuant to Chapter 35 of Title 12. The commission may prescribe forms and promulgate regulations in conformity with this chapter, including tables prescribing the amount to be added to the sales price. The county shall notify the Department of Revenue and Taxation and the State Treasurer through delivery of a certified copy of a resolution adopted by the county by December thirty-first following the referendum for the tax to be imposed May first. Failure to deliver the resolution by December thirty-first causes a delay of the imposition until the first day of May of the next calendar year. Notwithstanding the provisions of this subsection, the local sales and use tax must not be imposed before July first following the first referendum held pursuant to Section 4-10-30.
(B) All revenues collected by the Department of Revenue and Taxation on behalf of a county area pursuant to this chapter must be remitted to the State Treasurer to be credited to a Local Sales and Use Tax Fund which is separate and distinct from the state general fund. After deducting the amount of refunds made and the costs to the Department of Revenue and Taxation of administering the tax, not to exceed one-half of one percent of the fund or seven hundred fifty thousand dollars, whichever is greater, the State Treasurer shall deposit the revenue into the Local Sales and Use Tax Fund which consists of two separate funds: the Property Tax Credit Fund and the County/Municipal Revenue Fund. The revenue collected pursuant to this chapter must be allocated to each fund as follows:
(1) During the first year after the effective date of this act, sixty-three percent to the Property Tax Credit Fund and thirty-seven percent to the County/Municipal Revenue Fund.
(2) During the second year after the effective date of this act, sixty-five percent to the Property Tax Credit Fund and thirty-five percent to the County/Municipal Revenue Fund.
(3) During the third year after the effective date of this act, sixty-seven percent to the Property Tax Credit Fund and thirty-three percent to the County/Municipal Revenue Fund.
(4) During the fourth year after the effective date of this act, sixty-nine percent to the Property Tax Credit Fund and thirty-one percent to the County/Municipal Revenue Fund.
(5) During the fifth year after the effective date of this act, and each year thereafter, seventy-one percent to the Property Tax Credit Fund and twenty-nine percent to the County/Municipal Revenue Fund. The allocation of revenue to each fund provided for in this section must remain uniform as to the percentage allocated to each fund regardless of the year in which a county adopts the local sales and use tax. The State Treasurer shall distribute monthly the revenues according to the provisions of this chapter.
(C) The Department of Revenue and Taxation shall furnish data to the State Treasurer and to the governing bodies of the counties and municipalities receiving revenues for the purpose of calculating distributions and estimating revenues. The information which may be supplied to counties and municipalities includes, but is not limited to, gross receipts, net taxable sales, and tax liability by taxpayers. Information by taxpayer received by appropriate county or municipal officials is considered confidential and is governed by the provisions of Section 12-54-240. A person violating this section is subject to the penalties provided in Section 12-54-240. The State Treasurer may correct misallocations from the Property Tax Credit Fund and County/Municipal Revenue Fund by adjusting subsequent allocations, but these adjustments may be made only in allocations made in the same fiscal year as the misallocation."
Name changed
SECTION 58. Section 4-29-67(B)(4)(b), (C)(1), D(2)(a), (F)(2)(b), (N), and (P) of the 1976 Code is amended to read:
"(B)(4)(b) The members of the same controlled group of corporations as defined in Section 1563 of the Internal Revenue Code of 1986 can qualify for the fee if the combined investment in the county by the members meets the minimum investment requirements. The members whose investments will be used to meet the minimum level of investment must all be parties to any agreements providing the terms for payment of the fee. The county and the members who are part of the inducement agreement may agree that any investments by other members of the controlled group within the time period provided in subsection (C)(1) shall qualify for the payment regardless of whether the member was part of the inducement agreement. Members of the controlled group which are not parties to the inducement agreement must invest at least ten million dollars in the county and must notify the Department of Revenue and Taxation that the investment is subject to the fee before the execution of the lease agreement covering the investment by the member. The investments under subsection (B)(4)(b) must be within the same county. In order to qualify under this provision, investors claiming the fee must be members of the same controlled group at the time of the inducement agreement and all lease agreements which are executed by the parties. Members of the controlled group must provide the information considered necessary by the Department of Revenue and Taxation to ensure that the investors are part of a controlled group.
(C)(1) From the end of the property tax year in which the investor and the county execute the initial lease or lease purchase agreement, the investor has five years in which to complete its investment for purposes of qualifying for Section 4-29-67. If the investor does not anticipate completing the project within five years, the investor may apply to the county before the end of the five-year period for an extension of time to complete the project. If the county agrees to grant the extension, the county must do so in writing and a copy must be delivered to the Department of Revenue and Taxation within thirty days of the date the extension was granted. The extension may not exceed two years in which to complete the project. There is no extension allowed for the five-year period in which to meet the minimum level of investment. If the minimum level of investment is not met within five years, all property financed under the lease agreement reverts retroactively to the payments required by Section 4-29-60. The difference between the fee actually paid by the investor and the payment which is due under Section 4-29-60 is subject to interest as provided in Section 12-43-305. Unless property qualifies as replacement property under a contract provision enacted pursuant to subsection (F)(2), any property placed in service after the five-year period, or seven years in the case of a project which has received an extension, is not part of the fee agreement under subsection (D)(2) and is subject to the payments required by Section 4-29-60 if the county has title to the property, or to property taxes as provided in Chapter 37 of Title 12 if the investor has title to the property.
(D)(2)(a) An annual payment in an amount not less than the property taxes that would be due on the project if it were taxable, but using an assessment ratio of not less than six percent, and a fixed millage rate as provided in subsection (G), and a fair market value estimate determined by the South Carolina Department of Revenue and Taxation as follows:
(F)(2)(b) The new replacement property which qualifies for the fee provided in subsection (D)(2) is recorded using its income tax basis and the fee is calculated using the millage rate and assessment ratio provided on the original fee property. If the investor uses the method of making the payment provided in subsection (D)(2)(b) with either a fixed millage rate, or a changing millage rate as provided in subsection (D)(2)(c) if the fee on the original investment uses that method, then the investor and the county shall negotiate the method of calculating the present value of the fee payments for each year remaining in the fee period. This method must be provided to the Department of Revenue and Taxation at the time information concerning the calculation of the original fee payment is provided to the Department of Revenue and Taxation. If a method of calculating the fee payment for replacement property is not negotiated, then the method of calculating the payment must be based on subsection (D)(2)(a).
(N) The investor shall file the returns, contracts, and other information which may be required by the Department of Revenue and Taxation in order to report investments in connection with the fee.
(P) The Department of Revenue and Taxation may require returns and other information it considers appropriate to administer the provisions of this section, and may issue the rulings and regulations it determines necessary or appropriate to carry out the purpose of this section."
Name change
SECTION 59. Section 5-3-90 of the 1976 Code is amended to read:
"Section 5-3-90. Any city or town increasing its territory shall file a notice with the Secretary of State, Department of Transportation, and the Department of Public Safety describing its new boundaries. Such notice shall include a written description of the boundary, along with a map or plat which clearly defines the new territory added."
Names changed
SECTION 60. Section 5-3-110 of the 1976 Code is amended to read:
"Section 5-3-110. Whenever the whole or any part of any street, roadway or highway has been accepted for and is under permanent public maintenance by a city, a county or the Department of Transportation, that portion of any right-of-way area not exceeding the width thereof lying beyond but abutting on the corporate limits of the city may be annexed to and incorporated within the city by adoption of an ordinance so declaring, without necessity for election of any sort, upon prior consent in writing of any public agency other than the city engaged in maintenance of the right-of-way area to be annexed. Consent on behalf of the Department of Transportation may be given by the director. Consent on behalf of any county may be given by its county commissioners, county board of directors, or other local county agency or governing body having jurisdiction over county roads."
Name change
SECTION 61. Section 5-3-300(I)(3) of the 1976 Code is amended to read:
"(3) tracts of other than timberland not meeting the acreage requirement qualify if the freeholder reported at least one thousand dollars of gross farm income on his federal income tax return Schedule E or F for at least three of the five taxable years preceding the year of the annexation. The municipal clerk may require the freeholder (a) to give written authorization consistent with privacy laws allowing the clerk to verify farm income from the South Carolina Department of Revenue and Taxation, or the Internal Revenue Service and (b) to provide the Agriculture Stabilization and Conservation Service (ASCS) farm identification number of the tract and allow verification with the ASCS office."
Reference revised
SECTION 62. Section 5-7-110 of the 1976 Code is amended to read:
"Section 5-7-110. Any municipality may appoint or elect as many police officers, regular or special, as may be necessary for the proper law enforcement in such municipality and fix their salaries and prescribe their duties.
Police officers shall be vested with all the powers and duties conferred by law upon constables, in addition to the special duties imposed upon them by the municipality.
Any such police officers shall exercise their powers on all private and public property within the corporate limits of the municipality and on all property owned or provided, that the municipality may contract with any public utility, agency or with any private business to provide police protection beyond the corporate limits. controlled by the municipality wheresoever situated; provided, that the municipality may contract with any public utility, agency or with any private business to provide police protection beyond the corporate limits. Should the municipality provide police protection beyond its corporate limits by contract, the legal description of the area to be served shall be filed with the State Law Enforcement Division, the office of the county sheriff and the Department of Public Safety."
Name change
SECTION 63. Section 5-27-510 of the 1976 Code is amended to read:
"Section 5-27-510. A municipality may construct or authorize the construction of any building which encroaches upon or projects over a public sidewalk. Any encroachment on a street which is included in the state highway system shall be subject to the approval of the South Carolina Department of Transportation."
Enforcement of certain provisions deleted
SECTION 64. Section 6-9-60 of the 1976 Code is amended to read:
"Section 6-9-60. Municipalities or counties are authorized to adopt by reference only the latest editions of the following nationally known codes for regulation of construction within their respective jurisdictions: Standard Building Code, Standard Housing Code, Standard Gas Code, Standard Plumbing Code, Standard One and Two Family Dwelling Code, Standard Mechanical Code, Standard Fire Prevention Code, Standard Swimming Pool Code, Standard Excavation and Grading Code, National Electrical Code, and National Fire Protection Association Gas Codes. Should any city, town, or county contend that the codes authorized by this chapter do not meet its needs due to local physical or climatological conditions, the variations and modifications must be submitted for approval to a South Carolina Building Code Council of thirteen members which is established in this section. Members of this council must be appointed by the Governor. The council shall include an architect, representatives from the Municipal Association of South Carolina, the South Carolina Association of Counties, the Building Officials' Association of South Carolina, South Carolina Building Trade Council, a representative from the electric utility industry, a representative of the Carolinas Branch of the Associated General Contractors of America, Inc., representatives from the gas, electric, and plumbing industries, a representative of the Home Builders Association of South Carolina, a handicapped person, and the Chief Engineer of the State Budget and Control Board. At least one member of the council must be a member of each of the congressional districts, to be appointed, if positions become vacant, in the order provided below or as resignations occur. The primary function of the council is to decide to what extent any jurisdiction may vary from the series of codes listed in this section in the establishment of standards. The council shall monitor the adoption of building codes by cities and counties to insure compliance with this chapter. Of the members initially appointed by the Governor, four shall serve for terms of two years, four shall serve for four years, and five shall serve for terms of six years. After the initial appointment, all appointments are for terms of six years. Members of the council shall receive mileage, subsistence, and per diem as provided for other state boards, committees, or commissions for attendance at board meetings called by the chairman. The council shall elect from its appointive members a chairman and secretary. The council shall adopt regulations not inconsistent with this chapter. Meetings may be called by the chairman on his own initiative and must be called by him at the request of three or more members of the council. All members must be notified by the chairman in writing of the time and place of meeting at least seven days in advance of the meeting. Seven members constitute a quorum. All meetings are open to the public. At least two-thirds vote of those members in attendance at the meeting constitutes an official decision of the council."
Name changed
SECTION 65. Section 7-13-710 of the 1976 Code is amended to read:
"Section 7-13-710. When any person presents himself to vote, he shall produce his valid South Carolina driver's license or other form of identification containing a photograph issued by the South Carolina Department of Revenue and Taxation, if he is not licensed to drive, or the written notification of registration provided for by Sections 7-5-125 and 7-5-180 if the notification has been signed by the elector. If the elector loses or defaces his registration notification, he may obtain a duplicate notification from his county board of registration upon request in person, or by telephone or mail. After presentation of the required identification, his name must be checked by one of the managers on the margin of the page opposite his name upon the registration books, or copy of the books, furnished by the board of registration. The managers shall keep a poll list which must contain one column headed `Names of Voters'. Before any ballot is delivered to a voter, the voter shall sign his name on the poll list, which must be furnished to the appropriate election officials by the State Election Commission. At the top of each page the voter's oath appropriate to the election must be printed. The signing of the poll list or the marking of the poll list is considered to be an affirmation of the oath by the voter. One of the managers shall compare the signature on the poll list with the signature on the voter's driver's license, registration notification, or other identification and may require further identification of the voter and proof of his right to vote under this title as he considers necessary. If the voter is unable to write or if the voter is prevented from signing by physical handicap, he may sign his name to the poll list by mark with the assistance of one of the managers."
Public offices to be declared vacant under certain conditions
SECTION 66. Section 8-1-80 of the 1976 Code is amended to read:
"Section 8-1-80. Any public officer whose authority is limited to a single election or judicial district who is guilty of any official misconduct, habitual negligence, habitual drunkenness, corruption, fraud, or oppression shall be liable to indictment and, upon conviction thereof, shall be fined not more than one thousand dollars and imprisoned not more than one year. The presiding judge before whom any public officer convicted under this section is tried shall order a certified copy of the indictment to be immediately transmitted to the Governor who must, upon receipt of the indictment, by executive order declare the office to be vacant. The office must be filled as in the case of the death or resignation of the officer."
Suspension provisions revised
SECTION 67. Section 8-1-100 of the 1976 Code is amended to read:
"Section 8-1-100. Except as provided in Section 8-1-110, any state or county officer who is indicted in any court for any crime may, in the discretion of the Governor, be suspended by the Governor, who in event of suspension shall appoint another in his stead until he shall be acquitted. In case of conviction, the office shall be declared vacant by the Governor and the vacancy filled as provided by law."
Name changed
SECTION 68. Section 8-11-10 of the 1976 Code is amended to read:
"Section 8-11-10. The departments of the state government except where seven day per week services are maintained, shall remain open from nine A.M. until five P. M. from Monday through Friday, both inclusive, except on holidays fixed by law. On Saturdays such departments may close at one P.M. Skeleton forces may be maintained on Saturday and so staggered that each employee shall work not less than one Saturday out of each month; provided, that the offices of the Department of Revenue and Taxation shall remain open from eight-thirty A.M. until five P.M. from Monday through Friday, both inclusive, except on holidays fixed by law and these offices need not be kept open on Saturdays, except as may be necessary to carry on essential work."
Names changed
SECTION 69. Section 8-11-945 of the 1976 Code is amended to read:
"Section 8-11-945. For the purposes of this article, local health care providers of the Department of Disabilities and Special Needs, Division of Mental Retardation, Department of Alcohol and Other Drug Abuse Services, and the South Carolina Division on Aging are eligible for the base pay increase and performance pay increase as prescribed."
Name changed
SECTION 70. Section 8-13-740(A)(2)(c) of the 1976 Code is amended to read:
"(c) in a contested case, as defined in Section 1-23-310, excluding a contested case for a rate or price fixing matter before the South Carolina Public Service Commission or South Carolina Department of Insurance, or in an agency's consideration of the drafting and promulgation of regulations under Chapter 23 of Title 1 in a public hearing."
Name change
SECTION 71. Section 8-13-740(A)(6)(c) of the 1976 Code is amended to read:
"(c) in a contested case, as defined in Section 1-23-310, excluding a contested case for a rate or price fixing matter before the South Carolina Public Service Commission or South Carolina Department of Insurance, or in an agency's consideration of the drafting and promulgation of regulations under Chapter 23 of Title 1 in a public hearing."
Election and appointment provisions revised
SECTION 72. Section 8-13-910 of the 1976 Code is amended to read:
"Section 8-13-910. (A) No person who is a candidate for public office which is filled by election by the General Assembly may be voted upon by the General Assembly until at least ten days following the date on which the candidate files a statement of economic interests as defined in this chapter with the Chairman of the Senate Ethics Committee and the Chairman of the House of Representatives Ethics Committee.
(B) No person who is appointed to an office which is filled with the advice and consent of the Senate or the General Assembly may be confirmed unless the appointment, when received by the Senate and/or the House, is accompanied by a current original copy of a statement of economic interests which has been filed with the appointing authority and is transmitted with the appointment and until at least ten days following the date on which the appointment, with the attached original economic interest statement, has been received by the Senate and/or the House."
Name changed
SECTION 73. Item 9 of Section 8-17-370 of the 1976 Code is amended to read:
"9. Employees of the Public Service Authority, State Ports Authority, or the Division of Public Railways of the Department of Commerce;"
Name changed
SECTION 74. Section 8-21-310(20)(a) of the 1976 Code is amended to read:
"(a) for filing and enrolling and satisfying executions or warrants for distraint for the South Carolina Employment Security Commission, the South Carolina Department of Revenue and Taxation, or any other state agency, where costs of the executions or warrants for distraint are chargeable to the persons against whom such executions or warrants for distraint are issued, five dollars;"
Name changed
SECTION 75. Section 8-21-770(b) of the 1976 Code is amended to read:
"(b) Except as otherwise provided, the following fees and costs shall be collected by the Probate Courts and deposited in the general fund of the counties:
(1) In the administration of decedent estates, guardianships, and committeeships, costs shall be computed as follows:
(i) Property valuation less than $5,000.00 $20.00
(ii) Property valuation of $5,000 but less than $20,000 $40.00
(iii) Property valuation of $20,000.00 but less than
$60,000.00 $60.00
(iv) Property valuation of $60,000 but less than $100,000 $90.00
(v) Property valuation of $100,000.00 or higher
$90.00,
plus 1/10 of one percent of the property evaluation above $100,000.00 provided, that the fees as set out above shall include appointment of administrators, including administrators d. b. n., administrators d. b. n. c. t. a., ancillary administrators and temporary administrators; such fee shall include as necessary the cost of receiving and filing petition, issuing citation, filing bond, determining qualification, issuing letters, providing original certificate of administration and copies thereof as required during administration, issuing warrant of appraisement and furnishing copies to the Department of Revenue and Taxation or other authority as required by law, receiving and filing accounts and other papers, and final discharge of administrator; provided, further, that proving a will in common form shall include receiving and filing petition, proof and filing of will, order admitting will to probate, qualification of executors or other fiduciaries, filing bond, issuing letters providing original certificate of appointment, and copies thereof as required during administration, providing certified copy of will to executors or other fiduciaries, issuing warrant of appraisement and furnishing copies to the Department of Revenue and Taxation or other authority as required by law, receiving and filing accounts and other papers, and final discharge of executor;"
Name changed
SECTION 76. Section 8-21-780 of the 1976 Code is amended to read:
"Section 8-21-780. The fees of the Probate Court for copies of statements furnished to the Department of Revenue and Taxation under the provisions of Section 12-15-550 shall be $1.00 per page and shall be charges against the estate and collected prior to final discharge."
Name changed
SECTION 77. Section 8-21-790 of the 1976 Code is amended to read:
"Section 8-21-790. The office of the Probate Court shall also be paid fees according to the following schedule for each estate settled:
On the first $100.00 of tax collected 5%
Above $100.00 and up to $1,000.00 2%
Above $1,000.00 and up to $10,000.00 11/2%
Above $10,000.00 and up to $50,000.00 1%
Above $50,000.00 and up to $100,000.00 3/4 of 1%
Above $100,000.00 and up to $300,000.00 1/2 of 1%
Above $300,000.00 1/4 of 1%
But when the total fees received by the Office of the Probate Court of any county, under this schedule, shall in any one year exceed $10,000, the South Carolina Department of Revenue and Taxation shall retain three-fourths of the excess above $10,000 and shall turn such excess into the general funds of the state treasury, and if the Probate Judge shall fail or neglect to perform any duty required under Chapter 15 of Title 12, the South Carolina Department of Revenue and Taxation may withhold any or all of the fees provided for in the foregoing schedule and upon such order the Department of Revenue and Taxation shall turn such fees into the general fund of the State Treasurer. All fees allowed under this schedule shall be paid out of the taxes collected by the Department of Revenue and Taxation immediately upon receipt thereof and the receipt of the County Treasurer shall be sufficient voucher to the commission for paying same."
Cafeteria plan
SECTION 78. Section 9-1-60 of the 1976 Code is amended to read:
"Section 9-1-60. (A) The System may develop and implement a program for the administration of a flexible benefits or `cafeteria' plan as defined by Section 125 of the Internal Revenue Code of 1986 for all employees covered by the health and dental insurance plan administered by the System. The plan may not decrease contributions paid to or benefits paid by the System. The South Carolina Department of Highways and Public Transportation is herewith authorized to continue its independent cafeteria or flexible benefits pilot plan and to modify and implement the plan to accomplish maximum available benefits under Internal Revenue Section 125, until such time as the Comptroller General can convert Department of Transportation employees into the state cafeteria plan.
(B) Political subdivisions may develop and implement a program for the administration of a flexible benefits or `cafeteria' plan as defined by Section 125 of the Internal Revenue Code of 1986 for their employees. The plan may not decrease contributions paid to or benefits paid by the System."
Names changed
SECTION 79. Section 9-11-180 of the 1976 Code is amended to read:
"Section 9-11-180. The Department of Public Safety is hereby authorized to pay into the Police Officers' Retirement System fund prior to July 1, 1967, on behalf of active highway patrol member employees, an amount equal to the sum such members would be required to contribute to the fund for creditable prior service pursuant to Section 9-11-170. The amounts paid into the fund shall be used for the payment of retirement benefits under the Police Officers' Retirement System or shall be refunded to the Department of Public Safety. None of the moneys paid into the fund pursuant to this section shall be disbursed in any other manner to patrol member employees upon termination of employment with the department nor shall any such funds be paid to a patrol member employee's surviving beneficiary as a residual credit to any patrol member employee's account which may have existed upon his death. Provided, however, that the interest accruing after July 1, 1967 on the amount paid into the fund may be credited to the patrol member employee's account just as if he had made the contribution for creditable prior service for his account. Any time that the Police Officers' Retirement System closes the account of an active patrol member employee because of death or termination of employment with the department the System shall refund to the department the amount that it has paid into the fund on behalf of patrol member employees for creditable prior service under the Supplemental Allowance Program of the System."
References changed and exemption provision deleted
SECTION 80. Section 10-5-230 of the 1976 Code is amended to read:
"Section 10-5-230. There is created the South Carolina Board for Barrier-Free Design which must be composed of six members to be appointed by the Governor for terms of four years and until their successors are appointed and qualify. Not less than two appointed members of the board must be physically handicapped who ambulate by use of wheelchairs and one appointed member must be a licensed architect. Vacancies on the board must be filled by appointment in the same manner as provided for the original appointment for the remainder of the unexpired term. The board shall also have the following three ex officio members:
(1) the Chairman of the Building Code Council;
(2) the Director of the State Department of Vocational Rehabilitation; and
(3) the State Engineer employed by the Budget and Control Board.
The ex officio members may appoint proxies for their respective offices. The ex officio members have all the powers, privileges, and duties of the appointed members."
Organized references deleted
SECTION 81. Section 10-5-240 of the 1976 Code is amended to read:
"Section 10-5-240. The board shall elect a chairman and vice-chairman to serve for terms of two years each and until their successors are elected and qualify. The board shall adopt rules for the purpose of governing its internal proceedings. The board shall meet at least once annually and at those other times as may be designated by the chairman but in no event more than twice a month. Five members of the board constitute a quorum at all meetings. All members of the board must be paid the usual per diem, mileage, and subsistence as provided by law for members of boards, committees, and commissions for days on which they are on official business of the board, to be paid from the general fund of the State."
Appeal procedures revised
SECTION 82. Section 10-5-270 of the 1976 Code is amended to read:
"Section 10-5-270. The board may waive or modify any part of the standards and the specifications established pursuant to this article upon request, on a case by case basis, if the board determines:
(a) the purpose of this article can be fulfilled by an acceptable alternative to the particular standard;
(b) the incremental construction cost to conform to the standards exceeds seven percent of the total construction or renovation cost;
(c) occupancy and employment practices would generally exclude the use of a structure by handicapped persons due to hazards and employment requirements;
(d) usage or size of structures would have minimal impact in facilitating the handicapped; or
(e) the building involved is identified or classified by national or state jurisdictions as an `historic building' in which case no more than one accessible entrance may be required except that no accessible entrance may be required for so-called museum houses.
In areas of the State where building codes have been adopted and Building Boards of Adjustments and Appeals established to review construction related cases, these boards may carry out their normal function concerning code requirements for facilities for the handicapped. These Building Boards of Adjustments and Appeals shall consist of at least five members, including one architect, one engineer, one member at large from the building industry, one building contractor, and one member at large from the public. Should the Board for Barrier-Free Design determine that barrier-free design regulations are not being adequately enforced in any jurisdiction the board may withdraw the authority of that jurisdiction to make waivers or modifications and require that requests for these exceptions must thereafter be referred to the Board for Barrier-Free Design.
In areas of the State where there is no Building Board of Adjustments and Appeals, constituted as required by this section, all requests for waiver or modification must be submitted to the Board for Barrier-Free Design. However, the board may delegate authority to grant waiver of standards and specifications to local authorities, state officials, and municipal or county boards as it considers necessary and proper. Appeals from the decisions of the authorities listed above may be made to the Board for Barrier-Free Design.
If the Board for Barrier-Free Design denies a request for waiver or modification of the standards and specifications it shall notify the person or governmental entity requesting the waiver. Board action which denies a waiver or modification application may be appealed to an Administrative Law Judge as provided under Article 5 of Chapter 23 of Title 1."
References revised
SECTION 83. Section 10-5-300 of the 1976 Code is amended to read:
"Section 10-5-300. The enforcement of the provisions of this article, including investigations, must be by the building official of counties and municipalities which have properly adopted building codes in accordance with Chapter 9, Title 6. Counties and municipalities may establish regional agreements with other political subdivisions of the State to provide the services required of the building official and to enforce the provisions of this chapter. If a county or municipality does not have properly adopted building codes, then the Chairman of the Building Code Council shall enforce the provisions of this article in that county or municipality."
Judicial procedures revised
SECTION 84. Section 10-5-320 of the 1976 Code is amended to read:
"Section 10-5-320. The board or the persons empowered by Section 10-5-300 to enforce the provisions of this article shall notify any owner of property in violation of this article to comply with its provisions and make the necessary changes or corrections within a reasonable time. In the event of noncompliance after a reasonable time, the board or the persons empowered by Section 10-5-300 to enforce the provisions of this article shall bring suit before an Administrative Law Judge as provided under Article 5 of Chapter 23 of Title 1 to enjoin further construction of the building or facility or to enjoin the use of the building or facility until it is in compliance with the standards and specifications established pursuant to this article."
Names changed
SECTION 85. Section 10-7-10 of the 1976 Code is amended to read:
"Section 10-7-10. All insurance on public buildings and on the contents thereof of the State and of all institutions supported in whole or in part by the State shall be carried by the State Budget and Control Board. Any building or buildings, and the contents thereof, owned by the Department of Transportation may be insured by the State Budget and Control Board, with the consent or approval of such board, or the Department of Transportation shall have the alternative of assuming its own risks."
Name changed
SECTION 86. Section 10-9-320 of the 1976 Code is amended to read:
"Section 10-9-320. The State Budget and Control Board (board) may lease development rights to geothermal resources underlying surface lands owned by the State. The board must promulgate regulations regarding the method of lease acquisition, lease terms, and conditions due the State under lease operations. The South Carolina Department of Natural Resources is designated as the exclusive agent for the board in selecting lands to be leased, administering the competitive bidding for leases, administering the leases, receiving and compiling comments from other state agencies concerning the desirability of leasing the state lands proposed for leasing and such other activities that pertain to geothermal resource leases as may be included herein as responsibilities of the board."
Name changed
SECTION 87. Section 10-11-50 of the 1976 Code is amended to read:
"Section 10-11-50. It shall be unlawful for anyone to park any vehicle on any of the property described in Section 10-11-40 and subsection (2) of Section 10-11-80 except in the spaces and manner now marked and designated or that may hereafter be marked and designated by the State Budget and Control Board, in cooperation with the Department of Transportation, or to block or impede traffic through the alleys and driveways."
Name changed
SECTION 88. Section 10-11-80 of the 1976 Code is amended to read:
"Section 10-11-80. (1) Parking lots which are situated on the property of the State shall be reserved for the employees of the State. The parking lots referred to by this section shall be policed by the Department of Public Safety and no person not authorized by this section shall be allowed to occupy such parking lots. Parking lots referred to in this section are confined to those located in the City of Columbia.
(2) The parking lot located on the corner of Main and Senate Streets shall be reserved exclusively for members of the General Assembly, the clerks, chaplains, sergeants at arms, reading clerks of both houses and the Code Commissioner during such time as the legislature is in session, after which it shall be reserved as other state parking lots. The use of this lot by unauthorized persons shall constitute a misdemeanor, punishable as provided for in Section 10-11-120."
Name changed
SECTION 89. Section 11-9-820 of the 1976 Code is amended to read:
"Section 11-9-820. There is created the Board of Economic Advisors as follows:
(1) One member, appointed by the Governor who possesses specific working knowledge and experience in economics, revenue forecasting, and the state budget process. This person shall serve as chairman.
(2) Designated representative of the State Department of Revenue and Taxation, who shall serve ex-officio as a nonvoting member.
(3) One member appointed by the Chairman of the House Ways and Means Committee who possesses specific working knowledge and experience in economics, revenue forecasting, and the state budget process.
(4) One member appointed by the Chairman of the Senate Finance Committee who possesses specific working knowledge and experience in economics, revenue forecasting, and the state budget process.
The Chairman of the Board of Economic Advisors shall report directly to the Budget and Control Board to establish policy governing economic trends. The staff of the Board of Economic Advisors are administratively assigned to the Office of the Executive Director of the State Budget and Control Board. The staff shall advise the Board of Economic Advisors but shall report administratively to the Executive Director of the Budget and Control Board. The Chief Economist of the Board of Economic Advisors must be appointed annually by the Executive Director of the Budget and Control Board in consultation with the Chairman of the Board of Economic Advisors."
Name changed
SECTION 90. Section 11-9-825 of the 1976 Code is amended to read:
"Section 11-9-825. The staff of the Board of Economic Advisors must be supplemented by the following officials who each shall designate one professional from their individual staffs to assist the BEA staff on a regular basis: the Governor, the Chairman of the House Ways and Means Committee, the Chairman of the Senate Finance Committee, the State Department of Revenue and Taxation Chairman, and the Director of the Budget Division of the Budget and Control Board. The BEA staff shall meet monthly with these designees in order to solicit their input."
Name changed
SECTION 91. Section 11-11-10 of the 1976 Code is amended to read:
"Section 11-11-10. The State Budget and Control Board shall employ competent budget assistants and such special help as it may require to carry out the provisions of this chapter. It shall fix the compensation of such persons as it shall employ in this connection and cause such compensation, together with their necessary traveling expenses, to be paid out of the civil contingent fund. It shall call upon the State Department of Revenue and Taxation for any information desired, and the State Department of Revenue and Taxation shall furnish such information and shall be present at all hearings before the committees having charge of the appropriations in the Senate and House."
Bond definition revised
SECTION 92. Item (a) of Section 11-17-10 of the 1976 Code is amended to read:
"(a) The term `bonds' shall mean general obligation bonds payable from ad valorem taxes, general obligation bonds additionally secured by any pledge of any assessments, or any pledge of revenues derived by the borrower from any revenue-producing facility, bonds payable solely from the revenues of any revenue-producing facility, and bonds payable solely from any assessments. The term `bonds' shall also include state highway bonds as defined pursuant to the provisions of item (10) of Section 57-11-210, as amended."
Name changed
SECTION 93. Section 11-35-45 (B) of the 1976 Code is amended to read:
"(B) All agencies and institutions of the State are required to comply with the provisions of this section. Beginning July 1, 1983, the Department of Mental Health, the Department of Disabilities and Special Needs, the Department of Corrections, the Interagency Council on Public Transportation and the Sea Grant Consortium shall process all payments for goods or services through the Office of the Comptroller General. Only the lump sum institutions of higher education are responsible for the payment of all goods or services within thirty work days after the receipt of the goods or services, whichever is received later and shall pay an amount not to exceed fifteen percent per annum on any unpaid balance which exceeds the thirty work-day-period."
Name changed
SECTION 94. Section 11-35-710 of the 1976 Code is amended to read:
"Section 11-35-710. The board may upon the recommendation of the Division of General Services, exempt governmental bodies from purchasing certain items through the respective chief procurement officer's area of responsibility. The board may exempt specific supplies or services from the purchasing procedures herein required and for just cause may by unanimous written decision limit or withdraw any exemptions provided for in this section. The following exemptions are hereby granted in this chapter:
(a) the construction, maintenance and repair of bridges, highways and roads; vehicle and road equipment maintenance and repair; and any other emergency type parts or equipment utilized by the Department of Transportation;
(b) the purchase of raw materials by the South Carolina Department of Corrections, Division of Prison Industries;
(c) South Carolina State Ports Authority;
(d) Division of Public Railways of the Department of Commerce;
(e) South Carolina Public Service Authority;
(f) expenditure of funds at state institutions of higher learning derived wholly from athletic or other student contests, from the activities of student organizations and from the operation of canteens and bookstores, except as such funds are used for the procurement of construction, architect-engineer, construction-management and land surveying services;
(g) livestock, feed and veterinary supplies;
(h) articles for commercial sale by all governmental bodies;
(i) fresh fruits, vegetables, meats, fish, milk, and eggs;
(j) South Carolina Arts Commission and South Carolina Museum Commission for the purchase of one-of-a-kind items such as paintings, antiques, sculpture and similar objects. Before any governmental body procures any such objects, the head of the purchasing agency shall prepare a written determination specifying the need for such objects and the benefits to the State. The South Carolina Arts Commission shall review such determination and forward a recommendation to the board for approval;
(k) published books, periodicals, and technical pamphlets.
(l) South Carolina Research Authority."
Name changed
SECTION 95. Section 11-35-1520(12) of the 1976 Code is amended to read:
"(12) Provisions not to Apply. The provisions of this section shall not apply to maintenance services for aircraft of the Division of Aeronautics of the Department of Commerce."
Name changed
SECTION 96. Section 11-35-5230(B)(4) is amended to read:
"(4) Firms claiming the income tax credit shall maintain evidence of work performed for a state contract by minority subcontractors and shall present such evidence on a form and in a manner prescribed by the Department of Revenue and Taxation at the time of filing its state income tax return and claim such credit at the time of filing. All records shall be available for audit by the Department of Revenue and Taxation in accordance with prevailing tax statutes."
Name changed
SECTION 97. Section 11-35-5250(2) is amended to read:
"(2) Letter of Contract Award. When a minority business firm certified by the Department of Revenue and Taxation receives a contract with the State, the appropriate chief procurement officer shall furnish a letter, upon request, stating the dollar value and duration of, and other information about the contract, which may be used by the minority firm in negotiating lines of credit with lending institutions."
Name changed
SECTION 98. The first paragraph of Section 11-35-5270 of the 1976 Code is amended to read:
"A Small and Minority Business Assistance Office (SMBAO) shall be established to assist the board and the Department of Revenue and Taxation in carrying out the intent of this article. The responsibilities of the office shall include but not be limited to the following:"
SECTION 99A. Section 11-37-200 of the 1976 Code is amended to read:
"Section 11-37-200. (A) There is established by this section the Water Resources Coordinating Council which shall establish the priorities for all sewer, wastewater treatment, and water supply facility projects addressed in this chapter, except as otherwise established by Section 48-6-40. The council shall consist of a representative of the Governor, the Director of the Department of Health and Environmental Control, the Director of the Water Resources Commission, the Director of the Division of Local Government of the Budget and Control Board, the Director of the Department of Commerce, the Chairman of the Jobs Economic Development Authority, and the Chairman of the Joint Bond Review Committee. These representatives may designate a person to serve in their place on the council, and the Governor shall appoint the chairman from among the membership of the council for a one-year term. The council shall establish criteria for the review of applications for projects. Not less often than annually, the council shall determine its priorities for projects. The council after evaluating applications shall notify the authority of the priority projects. The South Carolina Jobs Economic Development Authority shall proide the staff to receive, research, investigate, and process applications for projects made to the coordinating council and assist in the formulating of priorities. Upon notification by the council, the authority shall proceed under the provisions of this chapter. The authority may consider applications for projects based upon the existence of a documented emergency consistent with regulations that may be promulgated by the authority. In determining which local governments are to receive grants, the local governments shall provide not less than a fifty percent match for any project. The authority may provide financing for the local matching funds on terms and conditions determined by the authority.
Name, title changed
SECTION 99B. Section 11-37-200(A) of the 1976 Code is amended to read:
"Section 11-37-200. (A) There is established by this section the Water Resources Coordinating Council which shall establish the priorities for all sewer, wastewater treatment, and water supply facility projects addressed in this chapter, except as otherwise established by Section 48-6-40. The council shall consist of a representative of the Governor, the Director of the Department of Health and Environmental Control, the Director of the South Carolina Department of Natural Resources, the Director of the Division of Local Government of the Budget and Control Board, the Director of the Department of Commerce, the Chairman of the Jobs Economic Development Authority, and the Chairman of the Joint Bond Review Committee. These representatives may designate a person to serve in their place on the council, and the Governor shall appoint the chairman from among the membership of the council for a one-year term. The council shall establish criteria for the review of applications for projects. Not less often than annually, the council shall determine its priorities for projects. The council after evaluating applications shall notify the authority of the priority projects. The South Carolina Jobs Economic Development Authority shall provide the staff to receive, research, investigate, and process applications for projects made to the coordinating council and assist in the formulating of priorities. Upon notification by the council, the authority shall proceed under the provisions of this chapter. The authority may consider applications for projects based upon the existence of a documented emergency consistent with regulations that may be promulgated by the authority. In determining which local governments are to receive grants, the local governments shall provide not less than a fifty percent match for any project. The authority may provide financing for the local matching funds on terms and conditions determined by the authority."
References to be changed
SECTION 100. The 1976 Code is amended by adding:
"Section 12-2-5. On February 1, 1995, the duties and powers given to the commissioners of the Department of Revenue and Taxation must be transferred to the director of the Department of Revenue and Taxation. When this transfer takes place, the Code Commissioner is directed to change all code references from commissioners of the Department of Revenue and Taxation to the director of the Department of Revenue and Taxation and to change references of `commission' to `department'."
Name changed
SECTION 101. Section 12-2-10 of the 1976 Code is amended to read:
"Section 12-2-10. As used in this title:
(1) `Commission' means the governing body of the South Carolina Department of Revenue and Taxation.
(2) `Department' means the South Carolina Department of Revenue and Taxation."
Name changed, additional duties
SECTION 102. Section 12-4-10 of the 1976 Code is amended to read:
"Section 12-4-10. The South Carolina Department of Revenue and Taxation is created to administer and enforce the revenue laws of this State; license, title and register motor vehicles including the drivers licensing of motor vehicle operators; administer the collection of license and registration fees; administer the licensing laws and regulations relating to alcoholic liquors, beer, and wine and assess penalties for violations thereof; and other laws specifically assigned to it."
Departmental divisions
SECTION 103. Chapter 2, Title 12 of the 1976 Code is amended by adding:
"Section 12-4-15. (A) The Department of Revenue and Taxation must be divided into such divisions as the commissioner of the department or director may prescribe but shall consist of at least the following principal divisions: tax, motor vehicle titling, registration and licensing and commercial motor vehicle services.
(B) Each division shall be supervised by a deputy director or designee of the Department of Revenue and Taxation."
Governance of department
SECTION 104. Section 12-4-30 of the 1976 Code is amended to read:
"Section 12-4-30. (A) Until February 1, 1995, the department consists of three commissioners, their officers, agents, and employees. The commissioners are appointed by the Governor with the advice and consent of the Senate. Commissioners shall possess sound moral character, superior knowledge in taxation, and proven administrative ability. The Governor shall designate one of the commissioners as chairman, giving consideration to prior service as a commissioner or employee of the commission.
(B) If a vacancy on the commission occurs when the General Assembly is not in session, it must be filled by the Governor's appointment for the unexpired term, subject to confirmation by the Senate at the next session of the General Assembly. Commissioners may be removed by the Governor for cause as provided in Section 1-3-240.
(C) After February 1, 1995, the department will be governed in matters of policy and administration by a director appointed by the Governor with the advice and consent of the Senate. The director may be removed from office pursuant to the provisions of Section 1-3-240.
(D) After February 1, 1995, all contested cases, as defined by Section 1-23-310 and as previously considered by the three commissioners, shall be heard by an administrative law judge under the provisions of Chapter 23 of Title 1."
References construed
SECTION 105. Section 12-4-335(F)(3) of the 1976 Code is amended to read:
"(3) Prior to February 1, 1995, references to the Director of Practice means the members of the South Carolina Tax Commission. After February 1, 1995, reference to Director of Practice means the Director of the Department of Revenue and Taxation."
Name changed
SECTION 106. Section 12-4-350 of the 1976 Code is amended to read:
"Section 12-4-350. The department may contract for computer and other electronic data processing services as it considers necessary. A person, firm, or governmental entity and their employees, under contract with the South Carolina Department of Revenue and Taxation, having access to information contained in or produced from a tax return, document, or magnetically or electronically stored data may not publish or disclose any part or parts of the data or information resulting from the data except to the department, or as authorized by the department, or as otherwise provided by law or by an order of a court of competent jurisdiction. This provision does not exempt the department from the provisions of the South Carolina Consolidated Procurement Code."
Name changed
SECTION 107. Section 12-4-370 of the 1976 Code is amended to read:
"Section 12-4-370. Funds received from the collection of warrants for distraint may not be expended to supplement appropriations to the Department of Revenue and Taxation. Any unexpended balance in the `Warrant Revolving Fund' less an amount necessary for adequate cash flow must be deposited to the credit of the general fund of the State."
Division established
SECTION 108. The 1976 Code is amended by adding:
"Article 4
Powers and Duties With Respect to
Division of Commercial Motor Vehicle Services
Section 12-4-400. There is created a Division of Commercial Motor Vehicle Services within the Department of Revenue and Taxation. The division shall have a Bureau of Permitting and Licensing and a Bureau of Commercial Motor Vehicle Driver's Licensing. Additionally, the Public Service Commission shall maintain an office within the division for the purposes of registering commercial motor vehicles within the jurisdiction of the commission. The division shall provide reasonable office space and equipment as is necessary for the proper administration of these services. However, the Public Service Commission shall provide the necessary support staff and operating expenses for the proper administration of this program. The Public Service Commission shall annually transfer to the department such funds as may be necessary and appropriate to cover the actual operating expenses of the office. The division and the Public Service Commission must annually study the feasibility providing these services at other regional locations of the division within the State. Each bureau shall be managed by a bureau director.
Section 12-4-410. The division shall provide registration and related services to interstate and intra-state motor carriers and other customers in the most efficient, courteous, and timely manner possible. Additionally, the division shall collect fees on behalf of the State for credentials, licenses, and permits issued by the division for motor vehicle carriers, and administer and regulate all interstate motor carrier registration and reciprocity plans, including the development, implementation, and administration of the fuel tax program with International Fuel Tax Agreement (IFTA) member states as well as individual carriers from nonmember states so as to collect fuel tax from carriers consistent with fuel consumption in South Carolina.
The division shall provide information and assistance to the public, motor carrier organizations, department personnel, and other customers regarding any of the policies and/or procedures administered by the division."
Name changed
SECTION 109. Section 12-7-455(h) of the 1976 Code is amended to read:
"(h) If a taxpayer complies with the provisions of Internal Revenue Code Section 367 for federal income tax purposes, then it is not necessary for the taxpayer to seek the approval of the South Carolina Department of Revenue and Taxation, but it is considered to have received the approval of the department so long as approval is received from the Internal Revenue Service. A taxpayer utilizing the provisions of Internal Revenue Code Section 367 shall attach to its next annual income tax return a copy of the approval received from the Internal Revenue Service."
Name changed
SECTION 110. Section 12-7-460B. of the 1976 Code is amended to read:
"B. One-half of the difference between the tax paid on the taxpayer's return attributable to this long-term capital gain and the tax attributable to this gain which would have been paid under the provisions of this section is refundable to the taxpayer when refunds are paid for the 1990 taxable year. The South Carolina Department of Revenue and Taxation may allow a portion or all of a refund due to be used as a credit against the taxpayer's liability for that year."
Name changed
SECTION 111. Section 12-7-1220(A) of the 1976 Code is amended to read:
"(A) Annually by December thirty-first, using the most current data available from the South Carolina Employment Security Commission and the United States Department of Commerce, the Department of Revenue and Taxation shall rank and designate the state's counties as provided in this section. The sixteen counties in this State having a combination of the highest unemployment rate and lowest per capita income for the most recent thirty-six month period with equal weight being given to each category are designated less developed counties. The fifteen counties in the State with a combination of the next highest unemployment rate and next lowest per capita income for the most recent thirty-six month period with equal weight being given to each category are designated moderately developed counties. The fifteen counties in the State with a combination of the lowest unemployment rate and the highest per capita income for the most recent thirty-six month period with equal weight being given to each category are designated developed counties. Corporations which create new full-time jobs qualify for the appropriate tax credit as provided in subsections (B), (C), and (D). The designation by the Department of Revenue and Taxation is effective for corporate tax years which begin after the date of designation. For corporations which plan a significant expansion in their labor forces at a South Carolina location, the appropriate commission shall prescribe certification procedures to insure that the corporations can claim credits in future years without regard to whether or not a particular county is removed from the list of less developed or moderately developed counties."
Name changed
SECTION 112. Section 12-7-1225 of the 1976 Code is amended to read:
"Section 12-7-1225. A taxpayer may claim as a credit twenty-five percent of all expenditures, to a maximum of two thousand five hundred dollars made in each tax year, for the construction and installation or restoration of ponds, lakes, and other water impoundments, and water control structures designed for the purposes of water storage for irrigation, water supply, sediment control, erosion control or aquaculture and wildlife management. This tax credit does not apply to any pond, lake, or other water impoundment or water control structure located in or adjacent to and filled primarily by coastal waters of the State.
To qualify for this credit the taxpayer must obtain a construction permit issued by the South Carolina Department of Health and Environmental Control, or its agent, the local Soil and Water Conservation District, or proof of exemption from permit requirements issued by either of the above agencies.
If the amount for such credit exceeds the taxpayer's tax liability for such taxable year, the amount which exceeds such tax liability may be carried over for credit against income taxes in the next five succeeding taxable years until the total amount of the tax credit has been taken."
Name changed
SECTION 113. Section 12-7-1250(E) of the 1976 Code is amended to read:
"(E) If a road qualifying for the credit allowed by this section is subsequently removed from the state highway or public road system the amount of the credit allowed for the construction of the road must be added to any corporate income tax due from the taxpayer for the first taxable year following the removal of the road from public use. The South Carolina Department of Revenue and Taxation shall by regulation implement the provisions of this subsection."
Name changed
SECTION 114. Section 12-7-1590 of the 1976 Code is amended to read:
"Section 12-7-1590. All individuals, corporations, and partnerships, in whatever capacity acting, including lessees and mortgagors of real or personal property, fiduciaries, and employers, making payments to another individual, corporation or partnership, of interest or dividends of two hundred dollars or more making payment to another individual, corporation, or partnership, of rent, salaries, wages, commissions, emoluments or other fixed or determinable gains or profits or income at the rate of eight hundred dollars or more in any taxable year, except that such payments of personal service compensation on which taxes are required to be withheld and reports of taxes withheld are made with respect to such individual as provided in Sections 12-9-610 to 12-9-660, shall make a true and accurate return to the South Carolina Department of Revenue and Taxation under such regulations as the Department of Revenue and Taxation may prescribe, setting forth the amount of such gains, profits or income and the name and address of the recipient thereof.
Any taxpayer failing to file the return required by this section shall be assessed a penalty of not less than five dollars nor more than one thousand dollars, which penalty shall be assessed and collected in the same manner and with like effect as income taxes provided by this chapter."
Name changed
SECTION 115. Section 12-7-2010 of the 1976 Code is amended to read:
"Section 12-7-2010. Every corporation subject to taxation under Chapter 7, Title 12, as amended, shall make a declaration of estimated tax for the taxable year provided that where the amount of estimated tax is less than one hundred dollars, no such declaration need be made.
(1) For purposes of Sections 12-7-2010 to 12-7-2040, the term estimated tax means the amount which the corporation estimates as the amount of income tax imposed by Chapter 7, Title 12, as amended, less the amount which the corporation estimates as the sum of credits allowed by law against such tax.
(2) A corporation with a taxable year of less than twelve months shall make a declaration in accordance with the regulations prescribed by the South Carolina Department of Revenue and Taxation."
Name changed
SECTION 116. Section 12-7-2230 of the 1976 Code is amended to read:
"Section 12-7-2230. Every corporation shall notify the Department of Revenue and Taxation in writing of every examination of its books and records with respect to its net income as reported on its federal income tax return within thirty days after it has or should have had knowledge of the beginning of such examination by the Internal Revenue Service. When any corporation executes a waiver of the statute of limitations on deficiencies and overassessments of federal income taxes, it shall notify the Department of Revenue and Taxation in writing within thirty days from the date of such waiver. Failure on the part of the corporation to notify the Department of Revenue and Taxation within the prescribed time of either of the above actions shall automatically suspend the limitations set forth in Section 12-7-2220 as amended until ninety days after the Department of Revenue and Taxation receives notice in writing from the corporation of such action."
Name changed
SECTION 117. Section 12-7-2415(D)(1), (2), and (3) of the 1976 Code are amended to read:
"(D) (1) There is established a special fund to be known as the `Nongame Wildlife and Natural Areas Fund' which shall consist of all monies transferred to it under this section, donations to the Nongame and Endangered Species or Heritage Trust Programs of the South Carolina Department of Natural Resources, and all interest earned thereon.
(2) All balances in the Nongame Wildlife and Natural Areas Fund must be carried forward each year so that no part thereof reverts to the general fund of the State.
(3) The Department of Natural Resources may expend monies held in the Nongame Wildlife and Natural Areas Fund in furtherance of the department's Nongame and Endangered Species Programs, Heritage Trust Programs, and for related educational projects and programs."
Name changed
SECTION 118. Section 12-7-2590 of the 1976 Code is amended to read:
"Section 12-7-2590. The Department of Revenue and Taxation, with the approval of the Budget and Control Board, is authorized to expend from the revenue collected under the provisions of Chapter 7, as amended, such additional money as is necessary to the adequate administration and enforcement of this article."
Name changed
SECTION 119. Section 12-7-2610 of the 1976 Code is amended to read:
"Section 12-7-2610. For the purpose of facilitating the settlement and distribution of estates held by fiduciaries, the South Carolina Department of Revenue and Taxation, with the approval of the Attorney General, may, on behalf of the State, agree upon the amount of taxes at any time due or to become due from fiduciaries under the provisions of Chapter 7 of Title 12 and payment in accordance with such agreement shall be full satisfaction of the taxes to which the agreement relates."
Name changed
SECTION 120. Section 12-9-130 of the 1976 Code is amended to read:
"Section 12-9-130. Every employee must, on or before the date of commencement of employment, furnish his employer with a signed withholding exemption, relating to the number of withholding exemptions which he claims. In no event shall the exemptions claimed exceed the exemptions to which he is entitled. Any employer who believes an employee has filed an incorrect exemption certificate must furnish a copy of the certificate to the Department of Revenue and Taxation within thirty days after it is filed. In the event the exemption certificate filed is determined to be incorrect, the Department of Revenue and Taxation must notify the employer and employee stating the rate at which taxes must be withheld. The decision of the Department of Revenue and Taxation may be appealed in writing to the Department of Revenue and Taxation by the employee within thirty days after the decision is rendered."
Name changed
SECTION 121. Section 12-9-310(A)(3)(c) and (B) of the 1976 Code are amended to read:
"(c) `county' means a county of this State.
This item also does not apply to amounts paid to:
a nonresident contractor performing work under a contract with the Department of Transportation; and
a nonresident subcontractor performing work for a contractor who is operating under a contract with the Department of Transportation.
For purposes of this item, the term nonresident does not include motion picture companies as defined in Section 12-36-2120 nor does it include entities performing personal services for motion picture companies when the motion picture companies and the personal service companies obtain a certificate of authority from the Secretary of State pursuant to Title 33.
The Department of Revenue and Taxation may grant partial or total exemption from the provisions of this subsection where:
(a) a portion of the contract is performed outside of this State;
(b) a portion of the contract consists of providing tangible personal property or material;
(c) a portion of the contract is subcontracted to others; or
(d) the taxpayer is not conducting business of a temporary nature in this State as evidenced by substantial assets or a place of business located in this State.
The conditions set forth in item (3) of this section may be waived by the Department of Revenue and Taxation, provided the payee shall insure the commission by bond, secured by an insurance company licensed by the South Carolina Department of Insurance, or deposit of securities subject to approval by the State Treasurer, or cash which shall not bear interest, that the payee will comply with all applicable provisions of Chapter 7 of this title and with the withholding requirements insofar as his obligations as a withholding agent are concerned.
(B) The conditions set forth in items (2) and (3) of subsection (A) of this section may be waived by the department, provided the payee shall insure the department by bond, secured by an insurance company licensed by the South Carolina Department of Insurance, or deposit of securities subject to approval by the State Treasurer, or cash which shall not bear interest, that the payee will comply with all applicable provisions of Chapter 5 of this title and with the withholding requirements insofar as his obligations as a withholding agent are concerned."
Name changed
SECTION 122. Section 12-9-420 of the 1976 Code is amended to read:
"Section 12-9-420. Every withholding agent who fails or neglects to withhold or pay to the Department of Revenue and Taxation any sums required by this chapter to be withheld and paid is personally and individually liable therefor, and any sum or sums withheld in accordance with the provisions of Sections 12-9-310 to 12-9-370 are to be held in trust for the State. An employee is entitled to a credit for the amount of income tax withheld from his wages even though the employer failed to remit and pay over the amount to the department. The term `withholding agent', as used in this section, includes an officer or employee of a corporation, or a member or employee of a partnership, who as such officer, employee, or member is under a duty to perform the act in respect of which the violation occurs."
Name changed
SECTION 123. Section 12-9-630 of the 1976 Code is amended to read:
"Section 12-9-630. On or before the thirty-first day of January next succeeding the year for which amounts were withheld under the provisions of this chapter, every withholding agent shall file a recapitulation and reconciliation of taxes withheld and paid in such form as the Department of Revenue and Taxation shall prescribe. However, an employer who has notified the department in accordance with Section 12-9-410 that he is no longer required to file reports in accordance with Section 12-9-390 may furnish the department with the reconciliation statement required by this section at the time he notifies the department that he is no longer required to file such reports."
Name changed
SECTION 124. Section 12-9-860 of the 1976 Code is amended to read:
"Section 12-9-860. Any employer who fails to comply with the provisions of Section 12-9-610, requiring the furnishing of a withholding statement to employees, is subject to a penalty of not less than one hundred dollars nor more than one thousand dollars for each violation. Any employer who fails to comply with the provisions of Section 12-9-620, requiring the filing of withholding statements with the Department of Revenue and Taxation, is subject to a penalty of not less than one hundred dollars nor more than two thousand dollars for each violation. These penalties shall be assessed and collected in the same manner and with like effect as income taxes provided by Chapter 7 of this title."
Name changed
SECTION 125. Section 12-13-70 of the 1976 Code is amended to read:
"Section 12-13-70. The income tax imposed by this chapter shall be administered by the State Department of Revenue and Taxation. The department shall make such rules and regulations not inconsistent with law as may be required for the proper administration and enforcement of this chapter, and such rules and regulations shall have full force and effect of law."
Name changed
SECTION 126. Section 12-16-1110(B), (C), and (D) of the 1976 Code are amended to read:
"(B) The personal representative of every estate subject to the tax imposed by this chapter who is required by the laws of the United States to file a federal estate tax return shall file with the Department of Revenue and Taxation, on or before the date the federal estate tax return is required to be filed: (1) a return for the tax due under this chapter; and (2) a copy of the federal estate tax return.
(C) In addition to the provisions of Section 12-54-70, if the personal representative has obtained an extension of time for filing the federal estate tax return, the filing required by subsection (B) is similarly extended until the end of the time period granted in the extension of time for the federal estate tax return. Upon obtaining an extension of time for filing the federal estate tax return, the personal representative shall provide the department with a copy of the instrument providing for this extension.
(D) Except as provided in Section 12-16-910, the tax due under this chapter must be paid by the personal representative to the Department of Revenue and Taxation at its office in Columbia not later than the date when the return covering this tax is required to be filed under subsection (B) or (C). If the tax is paid pursuant to subsection (C), interest, at a rate equal to the rate of interest established pursuant to Section 12-54-20, must be added for the period between the date when the tax would have been due had no extension been granted and the date of full payment."
Name changed
SECTION 127. Section 12-19-20 of the 1976 Code is amended to read:
"Section 12-19-20. (a) Every corporation organized under the laws of this State and every corporation organized to do business under the laws of any other state, territory, or country and qualified to do business in South Carolina and any other corporation required by Section 12-7-230 to file income tax returns, in addition to any other requirements of law, must make a report annually to the Department of Revenue and Taxation on or before the fifteenth day of the third month next after the preceding income year in a form prescribed by the Department of Revenue and Taxation and Secretary of State containing all information and facts either the Department of Revenue and Taxation or the Secretary of State may require for the administration of the provisions of this chapter and the provisions of Title 33.
(b) The annual report shall contain the following mandatory information:
(1) the name of the corporation and the state or country under whose law it is incorporated;
(2) the address of its registered office and the name of its registered agent at that office in this State;
(3) the address of its principal office;
(4) the names and business addresses of its directors and principal officers;
(5) a brief description of the nature of its business;
(6) the total number of authorized shares, itemized by class and series, if any, within each class; and
(7) the total number of issued and outstanding shares, itemized by class and series, if any, within each class.
(c) Information in the annual report must be current as of the date the annual report is executed on behalf of the corporation.
(d) The information required by subsection (b) in all annual reports is open to unrestricted public inspection and copying by any person, including any governmental unit or officer, and for any purpose. Any creditor, employee, officer, shareholder, or person interested in the affairs of the corporation, or its officers, shareholders, or directors, may inspect the information required by subsection (b) or request a copy of the information. A person may request the information required by subsection (b), including a copy of the information, from either the office of the Secretary of State or Department of Revenue and Taxation, and that office shall furnish promptly the information or copy sought. The request may be made in person, in writing, by phone, through an agent, or by any other reasonable manner.
Either the Secretary of State or Department of Revenue and Taxation, by regulation, may permit the public disclosure of other information, in addition to that required by subsection (b) which either one requires to be filed as an additional part of the corporation's annual report.
(e) In order to file the initial articles of incorporation or application for certificate of authority by a foreign corporation, the articles or application for certificate of authority must be accompanied by an initial annual report containing the information required pursuant to subsections (a) through (c) of this section together with a remittance for the minimum license fee required by Sections 12-19-70 and 12-19-120 made payable to the South Carolina Department of Revenue and Taxation. The report and remittance must be submitted to the Department of Revenue and Taxation by the Secretary of State."
Name changed
SECTION 128. Section 12-19-60 of the 1976 Code is amended to read:
"Section 12-19-60. In case of sickness, absence or other disability, or other good cause, the Department of Revenue and Taxation may, within its discretion, grant an extension of time within which to file the license tax return required by this section; provided, further, that where an extension of time is granted, the Department of Revenue and Taxation may require the taxpayer to file a tentative return showing the name and address of the taxpayer and the amount of tax estimated to be due; such tentative return to be filed on or before the fifteenth day of the third month next after the preceding income year and the estimated tax shown thereon paid in full at the time of filing such tentative return; provided, further, that the completed return must be filed and the balance of tax, if any, must be paid within the extended period."
Name changed
SECTION 129. Section 12-19-100 of the 1976 Code is amended to read:
"Section 12-19-100. In lieu of the license fee imposed by Section 12-19-70, there is hereby levied, in addition to any and all other license taxes and fees or taxes of whatever kind, a license fee of one mill upon each dollar of the fair market value of property, as determined by the South Carolina Department of Revenue and Taxation for property tax purposes for the preceding accounting period, owned and used within South Carolina in the conduct of business of every railroad company, express company, street railway company, navigation company, waterworks company, power company, electric cooperative, light company, gas company, telegraph company, telephone company, parlor, dining or sleeping car company, tank car company, refrigerating car company and fruit growers' express car company, and all privately operated car lines. The license fee provided for in this section shall be paid at the time of the filing of the reports required by this chapter."
Name changed
SECTION 130. Section 12-21-100 of the 1976 Code is amended to read:
"Section 12-21-100. Beer, wine, soft drinks or any goods, wares and merchandise subject to tax under the provisions of this chapter shall be exempt from such tax when sold to the United States Government or United States Government instrumentality for Army, Navy, Marine or Air Force purposes and delivered to a place lawfully ceded to the United States, or delivered to a ship belonging to the United States Navy for distribution and sale to members of the military establishment only, or when sold and delivered to ships regularly engaged in foreign or coastwise shipping between points in this State and points outside the State. Any goods, the sale of which is exempt by this section, may be stored and delivered without payment of the tax imposed by this chapter if stored and delivered in accordance with regulations to be promulgated by the South Carolina Department of Revenue and Taxation."
Name changed
SECTION 131. Section 12-21-320 of the 1976 Code is amended to read:
"Section 12-21-320. The use of documentary license meter impressions, in lieu of stamps as required by this article, may be permitted in the discretion of the South Carolina Department of Revenue and Taxation."
Name changed
SECTION 132. Section 12-21-470 of the 1976 Code is amended to read:
"Section 12-21-470. Any person who (a) is liable to pay the tax as provided in this article, (b) acts in the matter as agent or broker for such person, (c) makes any such sale or (d) in pursuance of any such sale delivers any certificate or evidence of the sale of any stock, interest or right or bill or memorandum thereof, as required in this article, without having the proper stamps affixed thereto shall be subject to a penalty imposed by the Department of Revenue and Taxation of not less than twenty dollars nor more than one hundred dollars for each offense, which penalty the department may remit in part or in whole."
Name changed
SECTION 133. Section 12-21-660 of the 1976 Code is amended to read:
"Section 12-21-660. Every person engaged in the business of purchasing, selling or distributing cigars, cheroots, stogies, cigarettes, snuff or smoking or chewing tobacco at wholesale or through vending machines within the State and all cigarette, cigar and tobacco product manufacturers' sales representatives who conduct business in this State shall file with the Department of Revenue and Taxation an application for a license permitting him to engage in such business. When such business is conducted at two or more separate places, a separate license for each place of business shall be required. A person whose business is conducted through vending machines needs to obtain only one license but shall maintain an up-to-date list of the location of each vending machine operated under this license and each manufacturer's sales representative needs to obtain only one license. The provisions of this section shall not apply to persons who own and stock vending machines for use on their own premises. Nothing in this section shall be construed as requiring a license for the privilege of buying, selling or distributing leaf tobacco nor shall this section apply to churches, schools or charitable organizations operating booths at state, county, or community fairs or to school or church entertainments."
Name changed
SECTION 134. Section 12-21-780 of the 1976 Code is amended to read:
"Section 12-21-780. Every distributor shall on or before the tenth day of each month file with the South Carolina Department of Revenue and Taxation a return on forms to be prescribed and furnished by the department showing the quantity and wholesale price of all tobacco products transported or caused to be transported into the State by him or manufactured or fabricated in the State for sale in this State. Every distributor authorized by the department to make returns and pay the tax on tobacco products sold, shipped, or delivered by him to any person in the State shall file a return showing the quantity and wholesale price of all products so sold, shipped, or delivered during the preceding calendar month. Such returns shall contain such further information as the South Carolina Department of Revenue and Taxation may require. Every distributor shall pay to the department with the filing of such return the tax on tobacco products for such month imposed under this article. When the distributor or dealer files the return and pays the tax within the time specified in this section, he may deduct therefrom two percent of the tax due."
Name changed
SECTION 135. Section 12-21-820 of the 1976 Code is amended to read:
"Section 12-21-820. Notwithstanding any other provision of this article, the Department of Revenue and Taxation is hereby authorized to sell business license stamps to any merchant, wholesale or retail, or manufacturer for his individual use where the person is located without this State. The person shall, as a prerequisite to the purchase of business license stamps, post a bond with the department which in its opinion is sufficient to protect the State with respect to any charges which may arise against the merchant or manufacturer. The merchant or manufacturer shall, as a prerequisite to the purchase of business license stamps, execute an agreement in such form as the department may prescribe, to the effect that the merchant or manufacturer will at any time within the limitation otherwise provided by law, make available to agents or auditors of the department all pertinent records respecting taxable commodities stamped for sale within this State. The privilege of purchasing business license stamps extended by this section to nonresident taxpayers is granted only where the State of residence of the taxpayer grants substantially the same privileges to residents of this State purchasing stamps from the State or where the State imposes no tax of a similar character to that imposed by this article.
The bond provided for in this section shall be in cash to be held without interest, securities subject to the approval of the State Treasurer, or a surety bond issued by a surety company duly licensed by the Department of Insurance to do business in this State."
Name changed
SECTION 136. Section 12-21-1060 of the 1976 Code is amended to read:
"Section 12-21-1060. Under the reporting method of tax payment on sales of beer and wine prescribed in Section 12-21-1050, the Department of Revenue and Taxation shall allow a discount of two percent to the wholesaler on the amount of tax reported on each monthly report.
In no case shall any discount be allowed if the taxes are not paid in full or if either the report or the taxes are received by the department after the date due, or after the expiration of any extension granted by the department."
Name changed
SECTION 137. Section 12-21-1110 of the 1976 Code is amended to read:
"Section 12-21-1110. The cost of stamps, supplies, and other expenses of the administration of this article shall be paid out of the proceeds derived from the collection of this tax upon warrants drawn by the Department of Revenue and Taxation upon the State Treasurer."
Name changed
SECTION 138. Section 12-21-1320 of the 1976 Code is amended to read:
"Section 12-21-1320. The additional taxes imposed by Section 12-21-1310 shall be levied against and collected from the wholesaler, importer, or any other person first offering such wine for sale within this State. The wholesaler, importer, or other person offering said wine for sale in this State shall make a report to the Department of Revenue and Taxation in such form as the department may prescribe and shall pay the tax due thereon not later than the twentieth day of the month following the sale of the wine.
Any wholesaler, importer, or other person first offering wine for sale in this State who fails to file the report or to pay the tax hereby imposed, on or before the twentieth day of the month following the sale of wine, shall pay a penalty of not less than twenty dollars nor more than one thousand dollars, to be assessed and collected by the department in the same manner and with like effect as other taxes are collected. The provisions of Section 12-21-1050 shall determine the payment of taxes for the month of June."
Name changed
SECTION 139. Section 12-21-1540 of the 1976 Code is amended to read:
"Section 12-21-1540. In all cases, the applicant for a certificate of registration required by this article, as a condition precedent to the issue of such certificate of registration, must certify that the Department of Revenue and Taxation shall have the right within statutory limitations to audit and examine the books and records, papers and memoranda of the applicant with respect to the administration and enforcement of laws administered by the Department of Revenue and Taxation."
Name changed
SECTION 140. Section 12-21-1550 of the 1976 Code is amended to read:
"Section 12-21-1550. Prior to shipment into the geographic boundaries of South Carolina to a licensed wholesaler of any beer or wine by a registered producer, the registered producer shall mail by first class mail to the Department of Revenue and Taxation a correct and complete invoice, showing in detail the items in such shipment by quantity, type, brand and size and the point of origin and the point of destination. Also, prior to or at the time of shipment, a copy of the bill of lading shall be forwarded to the Department of Revenue and Taxation by first class mail. Upon acceptance of delivery of the shipment by the duly licensed wholesaler, the wholesaler shall furnish the Department of Revenue and Taxation with a copy of the invoice covering the shipment, with endorsement thereon showing the date, time and place delivery was accepted."
Name changed
SECTION 141. Section 12-21-1570 of the 1976 Code is amended to read:
"Section 12-21-1570. The Department of Revenue and Taxation shall administer and enforce the provisions of this article."
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SECTION 142. Section 12-21-1580 of the 1976 Code is amended to read:
"Section 12-21-1580. The Department of Revenue and Taxation shall have the power to make such rules and regulations, not inconsistent with law, deemed necessary for the proper administration and enforcement of this article. Such rules and regulations shall have the full force and effect of law."
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SECTION 143. Section 12-21-1590 of the 1976 Code is amended to read:
"Section 12-21-1590. All monies received by the Department of Revenue and Taxation under the provisions of this chapter shall be deposited with the State Treasurer to the credit of the general fund of the State."
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SECTION 144. Section 12-21-1610 of the 1976 Code is amended to read:
"Section 12-21-1610. No person, firm, corporation, club or association or any organization within this State shall bring, ship, transport or receive into this State in any manner whatsoever any beer or wine as defined in Section 12-21-1010 for sale except duly licensed beer and wine wholesale distributors; provided, however, that an individual may be permitted to import beer and wine into this State for personal use and consumption within the State and not for sale, in quantities not to exceed ten cases, upon the receipt of a certificate from the Department of Revenue and Taxation authorizing the shipment and evidencing that such person has paid all taxes upon such beer and wine to the Department of Revenue and Taxation. Any person, firm, corporation, club or association in violation of this section shall be subject to a penalty of not less than twenty-five dollars nor more than one thousand dollars, to be assessed and collected by the Department of Revenue and Taxation in the same manner and with like effect as other taxes are collected."
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SECTION 145. Section 12-21-1840 of the 1976 Code is amended to read:
"Section 12-21-1840. A person who uses in South Carolina a powder or base other than a syrup in the manufacture of a soft drink for sale shall pay a license tax on each package or container of the powder or base in an amount equal to sixteen cents for each gallon of soft drink that is customarily manufactured from the contents of each package or container of powder or base.
The provisions of this section do not apply to a powder or base that is used by a bottler in the manufacture of a bottled soft drink and the Department of Revenue and Taxation may by regulation provide for the storage of the powder or base when it is not for use in the manufacture of soft drinks for sale. The provisions of this section do not apply to a powder or base that is used in preparing coffee, tea, cocoa, chocolate, any frozen concentrate, or freeze-dried concentrate to which only water is added to produce a pure vegetable or fruit juice nor shall these provisions apply to syrup donated to the Department of Parks, Recreation and Tourism for free distribution at welcome stations."
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SECTION 146. Section 12-21-2420(14)(g) of the first paragraph of Section 12-21-2420 of the 1976 Code and the first paragraph of Section 12-21-2410 of the 1976 Code are amended respectively to read:
"(g) other similar items approved by the department."
"The tax imposed by this section shall be paid by the person or persons paying such admission price and shall be collected and remitted to the South Carolina Department of Revenue and Taxation by the person or persons collecting such admission price. The tax imposed by this section shall not apply to any amount separately stated on the ticket of admission for the repayment of money borrowed for the purpose of constructing an athletic stadium or field by any accredited college or university. The revenue derived from the provisions of this section from fishing piers along the coast of South Carolina is hereby allocated for use of the Commercial Fisheries Division."
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SECTION 147. Section 12-21-2719 of the 1976 Code is amended to read:
"Section 12-21-2719. Effective for licenses which expire May 31, 1993, the Department of Revenue and Taxation shall begin converting all coin-operated device licenses required by statute to be issued annually by the department to a biennial licensing period. The department shall convert its annual licensing activity to a biennial system as provided in this section.
(1) Upon expiration and for which an application for renewal is received by the department, the department shall issue the first license for a two-year period. Subsequent licenses on the application must be issued on an alternating basis between two-year licenses and one-year licenses. Licenses expire May thirty-first of the year designated on the license. Licenses issued for a licensing period expiring after May 31, 1994, must be issued for two years. This section does not prevent the department from refusing to issue a license for failure to remit taxes, fees, penalties, or interest due and payable under Title 12.
(2) The department shall charge one-half of the biennial license for one-year licenses issued during the conversion process."
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SECTION 148. Section 12-21-2720(A) of the 1976 Code is amended to read:
"(A) Every person who maintains for use or permits the use of, on a place or premises occupied by him, one or more of the following machines or devices shall apply for and procure from the South Carolina Department of Revenue and Taxation a license effective for two years for the privilege of making use of the machine in South Carolina and shall pay for the license a tax of fifty dollars for each machine in item (1), two hundred dollars for each machine in item (2), and three thousand dollars for each machine in item (3):
(1) a machine for the playing of music or kiddy rides operated by a slot or mechanical amusement devices and juke boxes in which is deposited a coin or thing of value. A machine on which an admissions tax is imposed is exempt from the C.O.D. license provisions of this section.
(2) a machine for the playing of amusements or video games, without free play feature, or machines of the crane type operated by a slot in which is deposited a coin or thing of value and a machine for the playing of games or amusements, which has a free play feature, operated by a slot in which is deposited a coin or thing of value, and the machine is of the nonpayout pin table type with levers or `flippers' operated by the player by which the course of the balls may be altered or changed. A machine required to be licensed under this item is exempt from the license fee if an admissions tax is imposed.
(3) a machine of the nonpayout type, in-line pin game, or video game with free play feature operated by a slot in which is deposited a coin or thing of value except machines of the nonpayout pin table type with levers or `flippers' operated by the player by which the course of the balls may be altered or changed."
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SECTION 149. Section 12-21-2726 of the 1976 Code is amended to read:
"Section 12-21-2726. Every person who maintains for use or permits the use of, on any place or premises occupied by him, any machine subject to the license imposed by this article shall by way of proof of licensing have a current license attached to the machine, or alternatively the person shall have in his possession and produce on demand a receipt for a cashier's check, money order, or certified check not more than thirty days old made payable to the order of the South Carolina Department of Revenue and Taxation showing thereon the name or model except that those machines described in and licensed as item (3) machines may by way of proof of licensing have a current license on display at the premises occupied by him showing only the following information:
(1) the type of machine;
(2) the number of machines; and
(3) location showing the address of the machines. The owners of those machines described in and licensed as item (3) machines are specifically allowed to take advantage of those provisions of the United States Code which also authorize a tax credit for state-imposed taxes."
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SECTION 150. Section 12-21-3320(2) of the 1976 Code is amended to read:
"(2) `Commission' or `Department' means the South Carolina Department of Revenue and Taxation."
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SECTION 151. Section 12-21-3441 of the 1976 Code is amended to read:
"Section 12-21-3441. In addition to the bingo taxes levied under the provisions of Section 12-21-3440(B) of the 1976 Code, and beginning July 1, 1991, an additional one dollar is levied for each bingo player a session for sessions conducted by holders of a Class AA license and an additional fifty cents is levied for each bingo player a session for sessions conducted by holders of a Class B license each fiscal year. Nine hundred forty-eight thousand dollars of the total revenues received from bingo taxes as provided by Section 12-21-3440 and collected by the Department of Revenue and Taxation must be deposited monthly in equal amounts into an account in the office of the State Treasurer and called `Division on Aging Senior Citizen Centers Permanent Improvement Fund' (Fund). All interest earned on monies in the fund must be credited to the fund. The remaining revenues if any, generated by the bingo taxes must be deposited as provided in Section 12-21-3590."
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SECTION 152. Section 12-21-3590(C) of the 1976 Code is amended to read:
"(C) Twelve and one-half percent of the annual revenue derived from the provisions of this article which is collected from bingo within the State must be deposited with the State Treasurer to be credited to the account of the South Carolina Division on Aging. This amount must be allocated to each county for distribution in home community services for the elderly as follows:
(1) One-half of the funds must be divided equally among the forty-six counties.
(2) The remaining one-half must be divided based on the percentage of the county's population age sixty and above in relation to the total state population using the latest report of the United States Bureau of the Census.
(3) The aging service providers receiving these funds must be agencies recognized by the South Carolina Division on Aging and the Area Agencies on Aging."
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SECTION 153. Section 12-21-3600 of the 1976 Code is amended to read:
"Section 12-21-3600. A promoter of a bingo game who pays a winner a prize valued at one thousand dollars or more shall record the name, address, and social security number of the winner and the value of the prize he received and shall report the information to the Department of Revenue and Taxation quarterly."
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SECTION 154. Section 12-23-310 of the 1976 Code is amended to read:
"Section 12-23-310. Every foreign land association and other business of a like class not incorporated under the laws of this State shall each, before transacting business in this State, pay an annual license fee of one hundred dollars to the Department of Insurance of this State on or before the thirty-first day of March in each year, to be deposited by him in the State Treasury. Such license shall expire on the thirty-first day of March of the succeeding year."
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SECTION 155. Section 12-23-815 of the 1976 Code is amended to read:
"Section 12-23-815. The Department of Revenue and Taxation shall issue assessments for the tax provided by this article based on information provided by the Department of Health and Environmental Control and the Health and Human Services Finance Commission."
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SECTION 156. Section 12-23-820 of the 1976 Code is amended to read:
"Section 12-23-820. The Department of Revenue and Taxation shall administer and enforce the provisions of this article, and may promulgate regulations to enforce such provisions. The hospital tax levied pursuant to this article must be collected in accordance with the provisions of Chapter 54 of Title 12."
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SECTION 157. Section 12-23-830 of the 1976 Code is amended to read:
"Section 12-23-830. On the first day of each quarter, each general hospital shall remit one-fourth of its annual tax to the Department of Revenue and Taxation. The tax must be paid for each quarter a hospital is in operation. If a hospital ceases operations, the taxes not paid as a result of the cessation of operations must be apportioned among other hospitals in operation."
Tax reporting by county
SECTION 158. Chapter 27, Title 12 of the 1976 Code is amended by adding:
"Section 12-27-35. The department, in addition to other reporting requirements of this chapter, shall require that the taxes imposed pursuant to Chapter 27 of Title 12 be reported and aggregated by county. This information must be submitted to the department on forms prescribed by the department in conjunction with reports that are submitted pursuant to Section 12-27-30."
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SECTION 159. Section 12-27-270 of the 1976 Code is amended to read:
"Section 12-27-270. Gasoline purchased for and used in state-owned school buses and in state-owned administrative and service vehicles used in the pupil transportation program shall be exempt from state gasoline taxes. The State Board of Education, together with the Department of Transportation, and the Department of Revenue and Taxation, shall determine the method and procedure for the administration of this section."
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SECTION 160. Section 12-27-380 of the 1976 Code is amended to read:
"Section 12-27-380. The license tax of ten and thirty-four hundredths cents a gallon on gasoline as levied and provided for in this article must be distributed as follows: nine and thirty-four hundredths cents on each gallon must be turned over to the Department of Transportation for the purpose of the department and one cent a gallon must be deposited to the credit of the general fund of the State."
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SECTION 161. Section 12-27-390 of the 1976 Code is amended to read:
"Section 12-27-390. (A) Commencing with the collection of gasoline taxes falling due on and after July 1, 1968, one-half of one percent of the proceeds from the gasoline tax imposed pursuant to Section 12-27-230 must be transmitted to the Department of Natural Resources to be placed to the credit of a special water recreational resources fund of the state treasury and all balances in the fund must be carried forward each year so that no part of it reverts to the general fund of the State. All of the funds must be allocated based upon the number of boats or other watercraft registered in each county pursuant to law and expended, subject to the approval of a majority of the county legislative delegation, including a majority of the resident senators, if any, for the purpose of water recreational resources. The amounts allocated must be deducted from the gross proceeds of the gasoline tax imposed under Section 12-27-230 before net proceeds to be distributed to the Department of Transportation and counties pursuant to Section 12-27-380 are determined. This section does not reduce the one cent per gallon license tax now being distributed to the counties pursuant to Section 12-27-380.
(B) The governing body of any coastal county, upon recommendation of a majority of the legislative delegation, including a majority of the resident senators, shall refund to any person purchasing gasoline for use in commercial or charter fishing boats operated exclusively in the coastal waters of this State all or a portion of the state tax on the gasoline returned to the county pursuant to this section. The refund, if any, must be made pursuant to regulations established by the governing body of the county.
(C) The Department of Natural Resources must be reimbursed for engineering, design, and rehabilitation costs incurred in the administration of the provisions of this section. Funds for reimbursement must be transferred from funds collected under the provisions of this section."
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SECTION 162. Section 12-27-405 of the 1976 Code is amended to read:
"Section 12-27-405. Acquisitions by the Department of Transportation under the `C' Fund program are exempt from the requirements of all appraisal provisions of Title 28, Chapter 2 (Sections 28-2-10 et seq.), and Sections 1-11-110, 3-5-50, 3-5-100, 3-5-330, 4-17-20, 5-27-150, 5-31-420, 5-31-430, 5-31-440, 5-31-610, 5-35-10, 6-11-130, 6-23-290, 13-1-350, 13-11-80, 24-1-230, 28-3-20, 28-3-30, 28-3-140, 28-3-460, 46-19-130, 48-11-110, 48-15-30, 48-15-50, 48-17-30, 48-17-50, 49-17-1050, 49-19-1060, 49-19-1440, 50-13-1920, 50-19-1320, 51-13-780, 54-3-150, 55-9-80, 55-11-10, 57-3-700, 57-5-370, 57-5-380, 57-21-200, 57-25-190, 57-25-470, 57-25-680, 57-27-70, 58-9-2030, 58-15-410, 58-17-1200, 13-1-1330, 58-27-130, 58-31-50, 59-19-200, 59-105-40, 59-117-70, 59-123-90."
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SECTION 163. Section 12-27-430(7) of the 1976 Code is amended to read:
"(7) The South Carolina Department of Revenue and Taxation shall promulgate regulations for the procedures necessary to claim the tax incentives."
Special use deleted
SECTION 164. Section 12-27-1210 of the 1976 Code is amended to read:
"Section 12-27-1210. In addition to the tax levied by Sections 12-27-230 and 12-27-240 every oil company subject to the tax imposed by those sections shall pay to the State an additional tax in an amount equal to three cents a gallon on all gasoline, combinations of gasolines, or substitutes for gasoline, sold or consigned, used, shipped, or distributed for the purpose of sale within this State. All provisions of this chapter apply with equal force and effect to the additional tax on gasoline levied by this section."
Special use deleted
SECTION 165. Section 12-27-1220 of the 1976 Code is amended to read:
"Section 12-27-1220. In addition to the tax imposed by Sections 12-27-510 and 12-27-520, every person, firm, corporation, municipality, or county subject to tax imposed by those sections, or any subdivision of a municipality or county, shall pay an additional tax of three cents a gallon for every gallon of gasoline or other like product of petroleum under whatever name designated on which a tax is imposed by Section 12-27-510. All the provisions of this chapter apply with equal force and effect to the additional tax on gasoline levied by this section."
Special use deleted
SECTION 166. Section 12-27-1230 of the 1976 Code is amended to read:
"Section 12-27-1230. In addition to the tax levied by Section 12-29-310, a tax of three cents a gallon is imposed upon all fuel sold or delivered by any supplier to any person not licensed as a supplier under the provisions of Chapter 29 of this title. All the provisions of Chapter 29 of this title apply with equal force and effect to the additional tax levied by this section."
Special use deleted
SECTION 167. Section 12-27-1240 of the 1976 Code is amended to read:
"Section 12-27-1240. In addition to the road tax levied by Section 12-31-410, an additional road tax equivalent to three cents a gallon is imposed upon the amount of gasoline or other motor fuel used by every motor carrier in its operations within this State. All the provisions of Chapter 31 of this title apply with equal force and effect to the additional tax on gasoline levied by this section."
Obsolete provision deleted
SECTION 168. Section 12-27-1250 of the 1976 Code is amended to read:
"Section 12-27-1250. In addition to the credit provided for in Section 12-31-450, every motor carrier subject to the tax imposed by Section 12-27-1240 is entitled to a credit on the tax equivalent to three cents a gallon on all gasoline or other motor fuel purchased by the carrier within this State for use in operations either within or without this State and upon which gasoline or other motor fuel the tax imposed by the laws of this State has been paid by such carrier. This refund may be made only if the carrier has fully complied with all regulations of the commission and the provisions of Chapter 31 of this title."
Revenues credited to State Highway Fund
SECTION 169. Section 12-27-1260 of the 1976 Code is amended to read:
"Section 12-27-1260. The revenue derived from the tax levied by Sections 12-27-1210, 12-27-1220, 12-27-1230, and 12-27-1240 in this chapter must be remitted to the State Treasurer to be credited to the State Highway Fund to be used for highway transportation purposes. All revenues in the existing fund for the Strategic Highway Plan for Improving Mobility and Safety Program shall be transferred to the State Highway Fund upon the effective date of this act. These revenues may be used by the department to service bonded indebtedness for highway transportation purposes."
Plan not to be modified; exceptions
SECTION 170. Section 12-27-1265 of the 1976 Code is amended by adding:
"Section 12-27-1265. The South Carolina Department of Highways and Public Transportation Commission shall not change, modify, or substitute any pending construction project included in the ten-year plan of the March 4, 1993 report issued to the General Assembly for the Strategic Highway Plan for Improving Mobility and Safety Program. However, this shall not preclude the Commission of the Department of Transportation, once constituted, from modifying or altering the ten-year plan as may be necessary in the future."
Use of revenues revised
SECTION 171. Section 12-27-1290 of the 1976 Code is amended to read:
"Section 12-27-1290. The department must review projects for the possibility of constructing toll roads to defray the cost of these projects pursuant to the authority granted the department in Section 57-5-1330. No project may be funded by means of imposing a toll on the users of the project unless in conjunction with federal funds authorized for use on toll roads it is determined to be substantially feasible by the department. The funds derived from tolls must be returned to the State Highway Fund until the fund is reimbursed or used to service bonded indebtedness for highway transportation purposes. Upon reimbursement, all toll charges shall cease."
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SECTION 172. Section 12-27-1320(A) of the 1976 Code is amended to read:
"(A) Of total state source highway funds expended in a fiscal year on highway, bridge, and building construction, and building renovation contracts, the Department of Transportation shall ensure that not less than:"
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SECTION 173. Section 12-27-1510 of the 1976 Code is amended to read:
"Section 12-27-1510. A person who purchases and uses gasoline and other motor fuels taxed by this chapter and Chapter 29 of this title on trucking equipment for nonhighway purposes, other than propelling a motor vehicle, may apply for a refund of or credit on the fuel tax paid. Fuel refunds or credits for nonhighway use must be in accordance with regulations set forth by the Department of Revenue and Taxation, and procedures used in filing for refunds or credits must be uniform with procedures required by the Internal Revenue Service. A person claiming a fuel tax refund or credit on truck equipment for nonhighway purposes shall make application to the department on proper forms within one year from the date of purchase of motor fuel which has not been used or consumed by the purchaser before the filing of the application provided for in this section. The department may allow quarterly refunds for large users. If auxiliary equipment and the motor vehicle are powered off the same fuel tank, the Department of Revenue and Taxation shall determine what percentage of fuel is allowed for nonhighway purposes and subject to refund."
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SECTION 174. Section 12-29-20 of the 1976 Code is amended to read:
"Section 12-29-20. The Department of Revenue and Taxation shall administer and enforce the provisions of this chapter, and may from time to time make such rules and regulations, not inconsistent with this chapter, as it may deem necessary to enforce such provisions, and such rules and regulations shall have the full force and effect of law."
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SECTION 175. Section 12-29-110 of the 1976 Code is amended to read:
"Section 12-29-110. It shall be unlawful for any person to sell or deliver fuel within this State for use within this State unless such person is the holder of an uncancelled license as a supplier issued by the Department of Revenue and Taxation, or unless the tax on such fuel has been paid to a supplier."
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SECTION 176. Section 12-29-150 of the 1976 Code is amended to read:
"Section 12-29-150. Any person who purchases, sells, or uses combustible gases or liquids, except gasoline which may be used to propel a motor vehicle, shall be licensed by the Department of Revenue and Taxation and shall file with the department, upon such forms as the department may prescribe, a report which shall show the amount of such fuel purchased, sold, or used; provided, that a person licensed as a supplier or a person buying fuel for use and not for resale upon which the tax has been paid at the time of the purchase shall not be required to be licensed by this section, except that any person who operates or causes to be operated motor carriers and who maintains bulk storage facilities in this State for the purpose of purchasing and storing tax paid motor fuel other than gasoline for use in such motor carriers shall secure a license and file reports as required by this section; provided, further, that any person acquiring any such fuel solely for heating purposes and not for resale or for the sole purpose of operating locomotives, farm tractors, pleasure boats or commercial watercraft, aircraft and such fuel used solely for the purpose of manufacturing or processing materials shall not be required to be licensed under this section; provided, further, that the provisions of this section shall not apply to a seller-user of liquified petroleum gas. All combustible gases and liquids not specifically reported and shown to be used for nonhighway purposes shall be taxed at the rate of thirteen cents per gallon together with interest and penalties as provided by Section 12-29-620.
The department may require any person required to secure a license under the provisions of this section to post a bond either by cash or by a surety company authorized to do business in this State in an amount to be determined by the Department of Revenue and Taxation. This section shall not apply to any person or firm maintaining storage facilities for kerosene of not more than three hundred gallons and whose average monthly sales do not exceed twelve hundred gallons. The reports required by this section shall be filed on or before the twentieth day of each month and shall show all inventories, purchases, sales and use of fuel by the licensee during the preceding calendar month."
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SECTION 177. Section 12-31-20 of the 1976 Code is amended to read:
"Section 12-31-20. The Department of Public Safety shall enforce the provisions of this chapter with respect to the possession of correct registration and display of proper identification markers. The Department of Revenue and Taxation shall administer and enforce the provisions of this chapter, except the provisions respecting possession of registration and display of identification markers."
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SECTION 178. Section 12-31-50 of the 1976 Code is amended to read:
"Section 12-31-50. When any person is discovered in this State operating a vehicle in violation of any of the provisions of this chapter, it shall be unlawful for anyone thereafter to operate such vehicle on the streets or highways in this State except to remove it from the street or highway for the purpose of parking or storing it unless and until a bond in the amount of five hundred dollars is furnished to the Department of Public Safety in such form and with such surety or sureties or otherwise as it may prescribe, conditioned upon a proper registration card and identification marker being applied for within ten days and conditioned upon the payment of any taxes, penalties, or interest found to be due pursuant to this chapter."
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SECTION 179. Section 12-31-210 of the 1976 Code is amended to read:
"Section 12-31-210. No motor carrier shall operate or cause to be operated in South Carolina any vehicle described in Section 12-31-10 until he has secured from the South Carolina Department of Revenue and Taxation registration card and an identification marker for each such vehicle. Persons purchasing new equipment or corporations moving new equipment into this State which are required to be registered under this chapter may have not exceeding ten days to register such new equipment."
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SECTION 180. Section 12-31-230 of the 1976 Code is amended to read:
"Section 12-31-230. The South Carolina Department of Revenue and Taxation shall prepare forms for use in making applications for registration cards and identification markers in accordance with this chapter, and the applicant shall furnish all the information required by such forms before a registration card or identification marker is issued."
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SECTION 181. Section 12-31-240 of the 1976 Code is amended to read:
"Section 12-31-240. The registration card and the identification marker shall be of such form as the South Carolina Department of Revenue and Taxation may prescribe. Each identification marker shall bear a number which shall be the same as the number appearing on the registration card for the same vehicle."
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SECTION 182. Section 12-31-250 of the 1976 Code is amended to read:
"Section 12-31-250. (A) A motor carrier operating motor vehicles in this State shall apply to the South Carolina Department of Revenue and Taxation biennially for a registration card and identification marker for each power unit it operates in this State. For issuing each registration card and identification marker, a fee of eight dollars must be paid to the department upon application. For a registration card and identification marker issued during the second year of the biennial period, a fee of four dollars must be paid to the department. A person violating this section, upon conviction, must be punished as provided in Section 12-31-630.
(B) No card or marker may be issued by the department until the fee provided in this section is paid. Thirty percent of the fees provided by this section must be credited to the State Highway Fund. The remaining portion of the fees must be deposited to the credit of the general fund of the State."
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SECTION 183. Section 12-31-260 of the 1976 Code is amended to read:
"Section 12-31-260. The registration cards and markers provided for must be issued for the period beginning April first each biennium and are valid until March thirty-first of the biennium. Registration cards and markers that expire September 30, 1992, are extended until March 31, 1993. Beginning October 1, 1992, the South Carolina Department of Revenue and Taxation shall issue biennial registration cards and markers that expire March 31, 1995. All identification markers remain the property of the State."
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SECTION 184. Section 12-31-270 of the 1976 Code is amended to read:
"Section 12-31-270. The registration card shall be carried in the vehicle for which it was issued at all times when the vehicle is in this State. The identification marker shall be attached or affixed to the vehicle in the place and manner prescribed by the Department of Revenue and Taxation so that it is clearly displayed at all times, and it shall at all times be kept clearly legible."
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SECTION 185. Section 12-31-280 of the 1976 Code is amended to read:
"Section 12-31-280. In addition to the penalties herein provided, the Department of Revenue and Taxation may for good cause suspend or revoke any registration card or identification marker issued pursuant to this chapter and, thereupon, shall immediately notify the Department of Public Safety."
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SECTION 186. Section 12-31-420 of the 1976 Code is amended to read:
"Section 12-31-420. The amount of tax due must be calculated upon the amount of gasoline or other motor fuel used by the motor carrier in its operation within this State during the reporting period. The Department of Revenue and Taxation shall develop forms to reflect the tax due in accordance with nationally recognized standards."
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SECTION 187. Section 12-31-610 of the 1976 Code is amended to read:
"Section 12-31-610. Whenever it is discovered that any person has failed to pay the taxes, penalties, or interest, or any part thereof due pursuant to this chapter, the South Carolina Department of Revenue and Taxation is hereby authorized to make an assessment with respect thereto and there shall be added to such assessment a penalty of twenty-five per cent thereof and interest at the rate of one half of one per cent per month or fraction of a month from the time the said tax, penalty, or interest became due until paid."
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SECTION 188. Section 12-31-620 of the 1976 Code is amended to read:
"Section 12-31-620. Should any motor carrier fail, neglect, or refuse to file the report or to pay the tax due thereon within thirty days after the date for the filing of such report and the payment of the tax as provided in this chapter, the South Carolina Department of Revenue and Taxation shall calculate the tax on the basis of the best information available to it and shall assess the tax, together with penalty and interest above provided and, in addition, the penalty provided by Section 12-31-630."
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SECTION 189. Section 12-31-640 of the 1976 Code is amended to read:
"Section 12-31-640. Any person who operates or causes to be operated on any highway in this State any motor vehicle that does not carry a registration card as required by this chapter, or any motor vehicle that does not display, in the manner prescribed by this chapter or by the Department of Revenue and Taxation, the identification marker required by this chapter, shall be guilty of a misdemeanor and, upon conviction, shall be punished by a fine of not more than one hundred dollars. Each day's operation in violation of any provision of this section shall constitute a separate offense."
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SECTION 190. Section 12-33-70 of the 1976 Code is amended to read:
"Section 12-33-70. The Department of Revenue and Taxation may from time to time make such reasonable regulations, not inconsistent with Chapter 3, Chapter 7, and Article 3 of Chapter 13, all of Title 61, or with the general laws of the State, as the department shall deem necessary to carry out and enforce any other provisions of law relating to the enforcement, collection and payment of the license taxes provided in Chapter 3, Chapter 7, and Article 3 of Chapter 13, all of Title 61 and this chapter and to prevent the evasion of such provisions and the failure or refusal of any person subject thereto to pay such taxes.
The department may from time to time alter, repeal or amend such regulations or any of them. Such regulations shall be filed and published as provided for in Sections 1-1-210 to 1-1-240 and shall have the force and effect of law as provided in such sections. The department shall give additional notice thereof to all licensees in such manner as it may deem proper.
The wilful violation of any rule or regulation made under the provisions of this section and having the force and effect of law shall constitute a violation of Chapter 3, Chapter 7, and Article 3 of Chapter 13, all of Title 61."
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SECTION 191. Section 12-33-420 of the 1976 Code is amended to read:
"Section 12-33-420. Every licensed wholesaler shall pay an additional tax of fifty-six cents on each standard case of alcoholic liquors sold. The tax shall be paid to and collected by the Department of Revenue and Taxation in the same manner and with like penalties as provided in Sections 12-33-460 and 12-33-470. The proceeds of the tax shall be deposited into the State Treasury to the credit of the state's general funds, and shall not be subject to the provisions of Section 12-33-30, as amended, relating to the distribution of alcoholic liquor revenue to counties and municipalities."
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SECTION 192. Section 12-33-480 of the 1976 Code is amended to read:
"Section 12-33-480. The tax levied in Sections 12-33-410 and 12-33-460 shall be due and payable on or before the twentieth day of the month next succeeding the month in which the tax accrues. On or before the twentieth day of each month every person on whom the tax is levied or imposed by Sections 12-33-410 and 12-33-460 shall render to the department, on a form prescribed by it, a statement showing the number of cases of alcoholic liquors sold for the next preceding month, together with such other information as the department may require. At the same time the report is filed, the person shall pay to the department the amount of taxes due. The taxes provided in Sections 12-33-410 and 12-33-460 constitute a debt payable to the State by the persons against whom they are charged and all the taxes, penalties, and assessments constitute a first lien upon all property of such persons. The taxes, penalties, or interest in this section must be assessed and collected in the same manner and with like effect as other taxes are assessed and collected by the Department of Revenue and Taxation. A return is considered filed on time if it is mailed and postmarked on or before the date it is required by law to be filed. Any person failing to file a return required by this section must be assessed a penalty of not more than one thousand dollars which must be assessed and collected in the same manner and with like effect as other taxes collected by the Department of Revenue and Taxation. Any person required by this section to pay any tax and who fails to do so within the time allotted shall pay, in addition to the tax, a penalty of twenty-five percent of the tax and interest at one half of one percent per month or fraction of a month from the date the tax was originally due to the date of the payment of the tax and penalty. The Department of Revenue and Taxation may in its discretion waive or reduce the penalty or interest or any part thereof prescribed in this section. The provisions of Section 12-33-450 shall determine the payment of taxes for the month of June."
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SECTION 193. Section 12-33-485 of the 1976 Code is amended to read:
"Section 12-33-485. When a return required by this chapter is filed and the taxes shown due on the return are paid in full on or before the final due date, including any date to which the time for making the return and paying the tax has been extended by the Department of Revenue and Taxation, the person must be allowed a discount equal to one percent of the taxes shown to be due by the return. In no case shall any discount be allowed if either the return or the tax thereon is received by the department after the date due, or after the expiration of any extension granted by the department. The discount permitted a person under this section shall not exceed forty thousand dollars during any one fiscal year."
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SECTION 194. Section 12-33-620 of the 1976 Code is amended to read:
"Section 12-33-620. The officer discovering the mixture subject to tax under Section 12-33-610 shall notify, in writing, the Department of Revenue and Taxation, advising it of the quantity discovered, together with the name and address of the person liable therefor. The department shall send by registered mail duplicate notices to the officer and the person liable for the tax giving the amount due and allowing ten days from the date of receipt of such notice for the payment of such tax."
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SECTION 195. Section 12-33-630 of the 1976 Code is amended to read:
"Section 12-33-630. After the expiration of the ten-day notice provided for by Section 12-33-620, if the tax remains unpaid, the amount of such tax shall be deemed a debt to the State by the person liable therefor and shall be a lien upon all property of such person in this State. The Department of Revenue and Taxation shall issue a warrant under its hand and official seal, directing any duly authorized agent of the department to proceed to the levy and collection of the tax and costs in the same manner and with like effect as provided for by Sections 12-53-10 to 12-53-60."
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SECTION 196. Section 12-36-1370 of the 1976 Code is amended to read:
"Section 12-36-1370. (A) It is presumed that tangible personal property sold by any person for delivery in this State is sold for storage, use, or other consumption in this State, unless the seller takes from the purchaser a certificate, signed by and bearing the name and address of the purchaser, to the effect that the purchase was for resale.
(B) It is also presumed that tangible personal property received in this State by its purchaser was purchased for storage, use, or other consumption in this State."
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SECTION 197. Section 12-36-1710(G) of the 1976 Code is amended to read:
"(G) The Department of Revenue and Taxation and the Division of Aeronautics of the Department of Commerce may not issue a license or transfer of title without first procuring from the Department of Revenue and Taxation information showing that the excise tax has been collected. The Department of Natural Resources may not license any boat or register any motor without first procuring from the Department of Revenue and Taxation information showing that the excise tax has been collected."
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SECTION 198. Section 12-36-2120(15) of the 1976 Code is amended to read:
"(15) gasoline or other motor vehicle fuels taxed at the same rate as gasoline, fuels used in farm machinery, farm tractors, and commercial fishing vessels, and clean alternative transportation fuels as defined in regulation by the South Carolina Department of Revenue and Taxation as defined by the State Energy Office. Gasoline used in aircraft is not exempted by this item;"
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SECTION 199. Section 12-36-2660 of the 1976 Code is amended to read:
"Section 12-36-2660. The Department of Revenue and Taxation shall administer and enforce the provisions of this chapter."
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SECTION 200. Section 12-37-220 of the 1976 Code is amended to read:
"Section 12-37-220. (A) Pursuant to the provisions of Section 3 of Article X of the State Constitution, there shall be exempt from ad valorem taxation:
(1) all property of the State, counties, municipalities, school districts, Water and Sewer Authorities and other political subdivisions, if the property is used exclusively for public purposes, and it shall be the duty of the Department of Revenue and Taxation and county assessor to determine whether such property is used exclusively for public purposes;
(2) all property of all schools, colleges, and other institutions of learning and all charitable institutions in the nature of hospitals and institutions caring for the infirmed, the handicapped, the aged, children and indigent persons, except where the profits of such institutions are applied to private use;
(3) all property of all public libraries, churches, parsonages, and burying grounds;
(4) all property of all charitable trusts and foundations used exclusively for charitable and public purposes;
(5) all household goods and furniture used in the home of the owner of such goods and furniture, such to include built-in equipment such as ranges, dishwashers and disposals, but this exemption shall not apply to household goods used in hotels, rooming houses, apartments, or other places of business;
(6) all inventories of manufacturers, except manufactured articles which have been offered for sale at retail or which have been available for sale at retail. Fuel, including but not limited to uranium, special nuclear material, nuclear fuel, fossil fuel, coal, cellulose, wood or solid, liquid or gaseous hydrocarbons, held by a public utility, an affiliated interest of such public utility as defined in Section 58-27-2090 or a subsidiary of such public utility, or held by a corporation, entity or trust for the use and benefit of such public utility under orders or regulations of the Public Service Commission, shall be deemed to be inventories of manufacturers;
(7) all new manufacturing establishments located in any of the counties of this State after July 1, 1977, for five years from the time of establishment and all additions to the existing manufacturing establishments located in any of the counties of this State for five years from the time each such addition is made if the cost of such addition is fifty thousand dollars or more. Such additions shall include additional machinery and equipment installed in the plant. Provided, however, that the exemptions authorized in this item for manufacturing establishments, and additions thereto, shall not include exemptions from school taxes or municipal taxes but shall include only county taxes. Provided, further, that all manufacturing establishments and all additions to existing manufacturing establishments exempt under statutes in effect February 28, 1978, shall be allowed their exemptions provided for by statute until such exemptions expire;
(8) all facilities or equipment of industrial plants which are designed for the elimination, mitigation, prevention, treatment, abatement, or control of water, air, or noise pollution, both internal and external, required by the state or federal government and used in the conduct of their business. At the request of the Department of Revenue and Taxation the Department of Health and Environmental Control shall investigate the property of any manufacturer or company, eligible for the exemption to determine the portion of the property that qualifies as pollution control property. Upon investigation of the property, the Department of Health and Environmental Control shall furnish the Department of Revenue and Taxation with a detailed listing of the property that qualifies as pollution control property. For equipment that serves a dual purpose of production and pollution control, the value eligible for the ad valorem exemption is the difference in cost between this equipment and equipment of similar production capacity or capability without the ability to control pollution;
(9) a homestead exemption for persons sixty-five years of age and older, for persons permanently and totally disabled and for blind persons in an amount to be determined by the General Assembly of the fair market value of the homestead under conditions prescribed by the General Assembly by general law;
(10) intangible personal property. The exemptions provided in items (3) and (4) for real property shall not extend beyond the buildings and premises actually occupied by the owners of such real property.
(B) In addition to the exemptions provided in subsection A the following classes of property shall be exempt from ad valorem taxation subject to the provisions of Section 12-3-145:
(1) The dwelling house in which he resides and a lot not to exceed one acre of land owned in fee or for life, or jointly with a spouse, by any veteran who is one hundred percent permanently and totally disabled from a service-connected disability, if the veteran files a certificate signed by the county service officer of the total and permanent disability with the State Department of Revenue and Taxation. The exemption is allowed the surviving spouse of the veteran and is also allowed to the surviving spouse of a serviceman killed in action in the line of duty who owned the lot and dwelling house in fee or for life, or jointly with his spouse, so long as the spouse does not remarry, resides in the dwelling, and obtains by devise the fee or a life estate in the dwelling. A surviving spouse who disposes of the exempt dwelling and acquires another residence in this State for use as a dwelling house with a value no greater than one and one-half times the fair market value of the exempt dwelling may apply for and receive the exemption on the newly acquired dwelling, but no subsequent dwelling of a surviving spouse is eligible for exemption under this item. The spouse shall inform the Department of Revenue and Taxation of the change in address of the dwelling. The dwelling house is defined as a person's legal residence.
(2) The dwelling house in which he resides and a lot not to exceed one acre of land owned in fee or for life, or jointly with his or her spouse, by a paraplegic or hemiplegic person, is exempt from all property taxation provided the person furnishes satisfactory proof of his disability to the State Department of Revenue and Taxation. The exemption is allowed to the surviving spouse of the person so long as the spouse does not remarry, resides in the dwelling, and obtains by devise the fee or a life estate in the dwelling. The dwelling house is defined as the person's legal residence. For purposes of this item, a hemiplegic person is a person who has paralysis of one lateral half of the body resulting from injury to the motor centers of the brain.
(3) One personal motor vehicle owned or leased by any disabled veteran designated by the veteran for which special license tags have been issued by the Department of Revenue and Taxation under the provisions of Sections 56-3-1110 to 56-3-1130 or, in lieu of the license, if the veteran has a certificate signed by the county service officer or the Veterans Administration of the total and permanent disability which must be filed with the Department of Revenue and Taxation.
(4) All property of any kind of a nonprofit corporation created for the purpose of providing water supply or sewage disposal, or a combination of such services, organized pursuant to Sections 33-35-10 and 33-35-170.
(5) All property of the American Legion, the Veterans of Foreign Wars, the Spanish American War Veterans, the Disabled American Veterans, and Fleet Reserve Association or any similar Veterans Organization chartered by the Congress of the United States, whether belonging to the department or to any of the Posts in this State when used exclusively for the purpose of such organization and not used for any purpose other than club rooms, offices, meeting places or other activities directly in keeping with the policy stated in the National Constitution of such organization, and such property is devoted entirely to its own uses and not held for `pecuniary profit'. For the purposes of this item `pecuniary profit' refers to income received from the sale of alcoholic beverages to persons other than bona fide members and their bona fide guests, or any income, any part of which inures to the benefit of any private individual. Where any structure or parcel of land is used partly for the purposes of such organization and partly for such pecuniary profits, the area for pecuniary profits shall be assessed separately and that portion shall be taxed.
(6) All property owned and used or occupied by any Young Women's Christian Association, Young Men's Christian Association or the Salvation Army in this State and used for the purpose of or in support of such organizations but the exemption herein provided shall not apply to such portions of any such property rented for purposes not related to the functions of the organization.
(7) All property owned and used or occupied by The Boy's or Girl's Scouts of America and used exclusively for the purposes of those organizations.
(8) Properties of whatever nature or kind owned within the State and used or occupied by the Palmetto Junior Homemakers Association, the New Homemakers of South Carolina, the South Carolina Association of Future Farmers of America and the New Farmers of South Carolina, so long as such properties are used exclusively to promote vocational education or agriculture, better business methods and more effective organization for farming or to encourage thrift or provide recreation for persons studying agriculture or home economics in the public schools.
(9) All wearing apparel of the person required to make a return and of the family of such person.
(10) Notwithstanding any other provisions of law, the property of telephone companies and rural telephone cooperatives operating in this State used in providing rural telephone service, which was exempt from property taxation as of December 31, 1973, shall be exempt from such property taxation; provided, however, that the amount of property subject to ad valorem taxation of any such company or cooperative in any tax district shall not be less than the net amount to which the tax millage was applied for the year ending December 31, 1973. Any property in any tax district added after December 31, 1973, shall likewise be exempt from property taxation in the proportion that the exempt property of such company or cooperative as of December 31, 1973, in that tax district was to the total property of such company or cooperative as of December 31, 1973, in that tax district.
(11) All property of nonprofit housing corporations devoted exclusively to providing below-cost housing for the aged or for handicapped persons or for both aged and handicapped persons as authorized by Section 202 of the Housing Act of 1959 and regulated by regulations that appear in the Federal Register, 24 CFR Part 885. The reference date of the Housing Act of 1959 is as provided in Section 12-7-20(11).
(12) The property of any fraternal society, corporation or association, when the property is used primarily for the holding of its meetings and the conduct of its business and no profit or benefit therefrom shall inure to the benefit of any private stockholders or individuals.
(13) All agricultural products owned by the producer in this State.
(14) All farm machinery and equipment including self-propelled farm machinery and equipment except for motor vehicles licensed for use on the highways. For the purpose of this section `self-propelled farm machinery and equipment' means farm machinery or equipment which contains within itself the means for its own locomotion. For purposes of this item, farm equipment includes greenhouses.
(15) All livestock and live poultry.
(16)(a) The property of any religious, charitable, eleemosynary, educational, or literary society, corporation, or other association, when the property is used by it primarily for the holding of its meetings and the conduct of the business of the society, corporation, or association and no profit or benefit therefrom inures to the benefit of any private stockholder or individual.
(b) The property of any religious, charitable, or eleemosynary society, corporation, or other association when the property is acquired for the purpose of building or renovating residential structures on it for not-for-profit sale to economically disadvantaged persons, but this exemption may not be claimed for more than five tax years on a single property. Further, the total properties for which the religious, charitable, or eleemosynary society, corporation, or other association may claim this exemption in accordance with this paragraph may not exceed fifteen acres per county within the State.
(17) Personal property in transit with `no situs' status as defined in Article 7 of Chapter 37 of Title 12 and subject to the record keeping requirements and penalties prescribed in that article shall not be subject to ad valorem taxation.
(18) Real property leased on a nonprofit basis, to a state agency, county, municipality or other political subdivision so long as it is used for a general public purpose; provided, however, this exemption shall not apply to property used for office space or warehousing.
(19) All property owned by Volunteer Fire Departments and Rescue Squads used exclusively for the purposes of such departments and squads.
(20) All property of nonprofit museums which is used exclusively for such purpose.
(21) All property leased to and operated by the South Carolina Public Service Authority for the generation or transmission of electric power shall be deemed for all tax purposes to be property of the Authority and exempt from ad valorem taxes.
(22) All community owned recreation facilities opened to the general public and operated on a nonprofit basis.
(23) Notwithstanding any other provision of law, property heretofore exempt from ad valorem taxation by reason of the imposition upon such property or the owner of such property of a tax other than an ad valorem tax pursuant to the provisions of Section 12-11-30, Section 12-13-50 or Section 12-21-1080 shall continue to be entitled to such exemption.
(24) All property of nonprofit or eleemosynary community theater companies, symphony orchestras, county and community arts councils and commissions and other such companies, which is used exclusively for the promotion of the arts.
(25) All personal property loaned or leased on a nonprofit basis to a state agency, county, municipality, or other political subdivision, or to an organization exempt from federal income tax under Internal Revenue Code Section 501 through 514 as defined in item (11) of Section 12-7-20, for at least thirty days during the tax year, so long as such personal property is used solely for the purpose of public display and not for the use of such state agency, county, municipality, or other political subdivision, or exempt organization.
(26) All personal motor vehicles owned by recipients of the Medal of Honor for which special license tags have been issued by the Department of Revenue and Taxation under the provisions of Article 16 of Chapter 3 of Title 56 shall be exempt from state, county, and municipal taxes.
(27) All personal motor vehicles, owned or issued either solely or jointly by persons required to use wheelchairs, for which special license tags have been issued by the Department of Revenue and Taxation under the provisions of Section 56-3-1910, are exempt from state, county, and municipal taxes.
(28) All carnival equipment owned, leased, or used by a foreign corporation or other nonresident of this State, not physically present within State for an aggregate of more than six months of the tax year, and having paid an ad valorem or like tax in at least one other state.
(29) One personal motor vehicle or truck, not exceeding three-quarter ton, owned or leased by and licensed and registered in the name of any member or former member of the armed forces who was a prisoner of war (POW) in World War I, World War II, the Korean Conflict, or the Vietnam Conflict and who is a legal resident of this State, for which motor vehicle or truck a special tag has been issued by the Department of Revenue and Taxation in accordance with the provisions of Sections 56-3-1150 and 56-3-1160, is exempt from state, county, and municipal taxes. This exemption also extends to the surviving spouse of a qualified former POW for the lifetime or until the remarriage of the surviving spouse.
(30) All inventories.
(31) All real property of churches which extends beyond the buildings and premises actually occupied by the churches which own the real property if no profit or benefit from any operation on the churches' real property inures to the benefit of any private stockholder or individual and no income producing ventures are located on the churches' real property. This exemption does not change any exemption provided for churches or other entities in item (3) of subsection A of this section and item (c), Section 3 of Article X of the Constitution of this State but is an additional exemption for churches as provided in this item.
(32) All new corporate headquarters, corporate office facilities, distribution facilities, and all additions to existing corporate headquarters, corporate office facilities, or distribution facilities located in South Carolina, established or constructed, or placed in service, after June 27, 1988, are exempt from nonschool county ad valorem taxes for a period of five years from the time of establishment, construction, or being placed in service if the cost of the new construction or additions is fifty thousand dollars or more and seventy-five or more new jobs which are full-time are created in South Carolina. For the purpose of this exemption, the term:
(1) `new job' means any job created by an employer in South Carolina at the time a new facility or an expansion is initially staffed, but does not include a job created when an employee is shifted from an existing South Carolina location to work in a new or expanded facility;
(2) `full-time' means a job requiring a minimum of thirty-five hours of an employee's time a week for the entire normal year of company operations or a job requiring a minimum of thirty-five hours of an employee's time for a week for a year in which the employee was initially hired for or transferred to the South Carolina corporate headquarters, corporate office facility, or distribution facility and worked at a rented facility pending construction of a corporate headquarters, corporate office facility, or distribution facility;
(3) `corporate headquarters' means the location where corporate staff members or employees are domiciled and employed, and where the majority of the company's financial, personnel, legal, planning, or other business functions are handled either on a regional or national basis and must be the sole such corporate headquarters within the region or nation;
(4) `staff employee' or `staff member' means executive, administrative, or professional worker. At least eighty percent of an executive employee's business functions must involve the management of the enterprise and directing the work of at least two employees. An executive employee has the authority to hire and fire or has the authority to make recommendations related to hiring, firing, advancement, and promotion decisions, and an executive employee must customarily exercise discretionary powers. An administrative employee is an employee who is not involved in manual work and whose work is directly related to management policies or general business operations. An administrative employee must customarily exercise discretion and independent judgment. A professional employee is an employee whose primary duty is work requiring knowledge of an advanced type in a field of science or learning. This knowledge is characterized by a prolonged course of specialized study. The work must be original and creative in nature, and the work cannot be standardized over a specific period of time. The work must require consistent exercise of discretion;
(5) `region' or `regional' means a geographic area comprised of either:
(a) at least five states, including South Carolina, or
(b) two or more states, including South Carolina, if the entire business operations of the corporation are performed within fewer than five states;
(6) `corporate office facility' means the location where corporate managerial, professional, technical, and administrative personnel are domiciled and employed, and where corporate financial, personnel, legal, technical, support services, and other business functions are handled. Support services include, but are not limited to, claims processing, data entry, word processing, sales order processing, and telemarketing;
(7) `distribution facility' means an establishment where shipments of tangible personal property are processed for delivery to customers, but the term `distribution facility' does not include an establishment which operates as a location where retail sales of tangible personal property are made to customers. A distribution facility includes establishments which process customer sales orders by mail, telephone, or electronic means, if the establishment also processes shipments of tangible personal property to customers. The terms `retail sale', and `tangible personal property', for purposes of this definition, have those meanings as contained in Chapter 35 of Title 12. Certification of the required investment and the number of new jobs which are full-time and which are created must be provided by the South Carolina Department of Revenue and Taxation to the appropriate local tax officials.
(33) All personal property of an air carrier including aircraft used in operating an air carrier hub terminal facility in this State for a period of ten consecutive years from the date of qualification, if its qualifications are maintained. An air carrier hub terminal facility is defined in Section 55-11-500.
(34) The facilities of all new enterprises engaged in research and development activities located in any of the counties of this State, and all additions valued at fifty thousand dollars or more to existing facilities of enterprises engaged in research and development are exempt from ad valorem taxation in the same manner and to the same extent as the exemption allowed pursuant to item (7) of subsection A of Section 12-37-220. For purposes of this section, facilities of enterprises engaged in research and development activities are facilities devoted directly and exclusively to research and development in the experimental or laboratory sense for new products, new uses for existing products, or for improving existing products. To be eligible for the exemption allowed by this section, the facility must be a separate facility devoted exclusively to research and development as defined in this section. The exemption does not include facilities used in connection with efficiency surveys, management studies, consumer surveys, economic surveys, advertising, promotion, or research in connection with literary, historical, or similar projects."
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SECTION 201. Section 12-37-380 of the 1976 Code is amended to read:
"Section 12-37-380. Upon receipt of such report from the Commissioner of Agriculture showing failure to arrive at a reciprocal agreement with any state and all the facts pertinent thereto, the Governor, by executive order, shall authorize the South Carolina Department of Revenue and Taxation to collect such taxes and licenses in this State as are levied and collected in such other state failing and refusing to reciprocate, if any, by summarily issuing an execution against the person who shall be liable and does not pay such equivalent tax. Such execution shall be directed to any and all levying officers of this State who shall have authority to levy and collect such execution."
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SECTION 202. Section 12-37-970 of the 1976 Code is amended to read:
"Section 12-37-970. The assessment for property taxation of merchants' inventories, equipment, furniture and fixtures, and manufacturers' real and tangible personal property, and the machinery, equipment, furniture and fixtures of all other taxpayers required to file returns with the South Carolina Department of Revenue and Taxation for purposes of assessment for property taxation, must be determined by the department from property tax returns submitted by the taxpayers to the department on or before the last day of the fourth month after the close of the accounting period regularly employed by the taxpayer for income tax purposes in accordance with Chapter 7 of this title. The department by regulation shall prescribe the form of return required by this section, the information to be contained in it, and the manner in which the returns must be submitted. Every taxpayer required to make return to the department of property for assessment for property taxation must make the return to the department not less than once each calendar year. Whenever by a change of accounting period, or otherwise, more than one accounting period ends within any one calendar year, the taxpayer must make one such return within the prescribed time for filing following the end of each of the accounting periods and the department shall determine the assessment from the return setting forth the greatest value.
When property required to be returned as herein provided is sold after the end of the seller's accounting year and before January first next ensuing and when the purchaser's accounting year ends after the seller's and before January first next ensuing, the property must be returned by the seller as of the end of his accounting period. The purchaser is not required to list and return the property as of the close of his accounting period during the calendar year of sale. The seller and the purchaser are jointly and singularly liable for the tax that is due and payable by reason of this provision. The provision of this section does not apply to motor vehicles licensed for use on public highways.
When property required to be returned as provided in this section is sold before the end of the seller's accounting year and before January first next ensuing and when the purchaser's accounting year ends before the date of purchase and before January first next ensuing, the property must be listed and returned by the taxpayer holding title as of December thirty-first and is liable for the tax for the ensuing year.
The Department of Revenue and Taxation shall forward the assessments prepared as a result of the returns submitted pursuant to this section to the appropriate local taxing authorities no later than August fifteenth of the applicable tax year."
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SECTION 203. Section 12-37-975 of the 1976 Code is amended to read:
"Section 12-37-975. The Department of Revenue and Taxation may permit any person to substitute an amended return for the original return up to the last day prescribed for filing the return, including any extension of time granted by the department. The department in its discretion may accept or reject an amended return filed after the time prescribed for filing the return. An amended return may not operate to start or extend the limitation period for assessment and collection of taxes."
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SECTION 204. Section 12-37-1120 of the 1976 Code is amended to read:
"Section 12-37-1120. All property claimed to be `no situs' under this article shall be designated as being `in transit' upon the books and records of the warehouse wherein it is located, which books and records of the warehouse shall contain a full, true and correct inventory of all such property. The books and records of any such warehouse with reference to any such `in transit' property shall be at all times open to the inspection of all taxing authorities of this State and of any political subdivision thereof. Any person making claim to `no situs' status on any property as provided for by this article shall determine the percentage of amount of `no situs' property by dividing the total property shipped during the entire latest period located in South Carolina, not exceeding thirty-six months, into the total property shipped outside the State of South Carolina during the same period. The percentage determined in accordance with this section shall be applied to the inventory on hand on the last day of the accounting period of the person to determine the amount of `no situs' property.
Any person making claim to `no situs' status of any property under this article shall do so in the form and manner prescribed by the South Carolina Department of Revenue and Taxation and all such claims shall be accompanied by a certification of the warehouseman as to the percentage used."
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SECTION 205. Section 12-37-1130 of the 1976 Code is amended to read:
"Section 12-37-1130. If any person shall wilfully deliver any statement to the South Carolina Department of Revenue and Taxation concerning `no situs' property containing a false statement of a material fact, whether it be an owner, shipper, his agent or a storage or warehouseman or his agent, he shall be guilty of a misdemeanor and upon conviction shall be punished by a fine of not less than one hundred dollars nor more than five hundred dollars, or by imprisonment of not less than ten days nor more than six months."
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SECTION 206. Section 12-37-1410 of the 1976 Code is amended to read:
"Section 12-37-1410. The South Carolina Department of Revenue and Taxation is hereby directed to adjust the formula used to assess merchant's inventories and merchant's equipment, furniture, and fixtures, so that the result in assessment will be reduced to eighteen percent the first year and to be reduced ratably over a period of the next two years to arrive at a fourteen percent assessment ratio."
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SECTION 207. Section 12-37-1420 of the 1976 Code is amended to read:
"Section 12-37-1420. The Department of Revenue and Taxation shall fix the value of the inventories, machinery, equipment, furniture, and fixtures for each year, and they shall certify such valuation to the several county auditors who shall place it on their records as the value of such property for taxation. Nothing herein shall be construed to affect the provisions of Section 12-37-1320."
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SECTION 208. Section 12-37-1610 of the 1976 Code is amended to read:
"Section 12-37-1610. The President or designated agent of every railroad company, whose track or roadbed, or any part thereof, is located in this State, shall annually, on or before the fifteenth day of the fourth month, following the close of the company's accounting period, file a return to the South Carolina Department of Revenue and Taxation, under oath, on forms prescribed by the department. Such company shall also file a duplicate copy of the annual report to the Interstate Commerce Commission of the United States Government or a duplicate copy of the annual report required by the South Carolina Public Service Commission and any other report the Department of Revenue and Taxation may require that shall accurately detail all real and personal property of the company within and without this State."
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SECTION 209. Section 12-37-2110 of the 1976 Code is amended to read:
"Section 12-37-2110. As used in this article, the following words shall have the following meanings:
(a) `Company' shall be deemed and construed to mean any person, copartnership, association, corporation, or syndicate that may own or operate, or be engaged in operating, furnishing, or leasing cars, as defined and described in this section, whether formed or organized under the laws of this State or any other State or territory.
(b) `Private car' includes a passenger car, sleeping car, dining car, express car, refrigerator car, oil or tank car, horse or stock car, fruit car, or any car designed for the carrying of a special commodity, operated upon the railroads in this State. `Private car' also includes any passenger train car, locomotive, or other equipment operated on the railroads in this State and owned, used or leased by the National Railroad Passenger Corporation, created under the Rail Passenger Service Act of 1970 (Public Law 91-518, 91st Congress) or any successor in interest other than a railroad company. `Private car' does not include freight train or passenger train cars owned by railroad companies which are used or subject to use under the ordinary per diem.
(c) `Commission' or `Department' means the South Carolina Department of Revenue and Taxation."
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SECTION 210. Section 12-37-2410(d) of the 1976 Code is amended to read:
"(d) `Commission' or 'Department' means the South Carolina Department of Revenue and Taxation."
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SECTION 211. Section 12-37-2650 of the 1976 Code is amended to read:
"Section 12-37-2650. The auditor shall prepare a tax notice of all vehicles owned by the same person and licensed at the same time. A notice must be in four parts and must describe the motor vehicle by name, model, and identification number. The notice must set forth the assessed value of the vehicle, the millage, the taxes due on each vehicle, and the license period or tax year. The notice must be delivered to the county treasurer and it is the treasurer's responsibility to collect or receive payment of the taxes. One copy of the notice must be in the form of a bill or statement for the taxes due on the motor vehicle and, when practical, the treasurer shall mail that copy to the owner or person having control of the vehicle. When the tax is paid, the treasurer shall issue the taxpayer two copies of the paid receipt. One copy must be delivered by the taxpayer to the Department of Revenue and Taxation with the application for the motor vehicle license and the other copy must be retained by the treasurer. The auditor shall maintain a separate duplicate for motor vehicles. No license may be issued without the receipt being attached to the application or a copy of the notification required by Section 12-37-2610 but the county treasurer may, by other means satisfactory to the department, transmit evidence of payment of the tax which must be accepted as evidence of payment. Motor vehicles registered under the International Reciprocity Plan may pay ad valorem property taxes on a semiannual basis, and a proportional receipt must be issued by the treasurer subject to penalties in Section 12-37-2730. The treasurer, tax collector, or other official charged with the collection of ad valorem property taxes in each county may delegate the collection of motor vehicle taxes to banks or banking institutions, if each institution assigns, hypothecates, or pledges to the county, as security for the collection, federal funds or federal, state, or municipal securities in an amount adequate to prevent any loss to the county from any cause. Each institution shall remit the taxes collected daily to the county official charged with the collections. The receipt given to the taxpayer, in addition to the information required in this section and by Section 12-45-70, must contain the name and office of the treasurer or tax collector of the county and must also show the name of the banking institution to which payment was made.
The county official charged with the collection of taxes shall send a list of the institutions collecting the taxes to the Department of Revenue and Taxation. Each institution shall certify to the department that the taxes have been paid, and the department is authorized to accept certification in lieu of the tax receipt given to the taxpayer if certification contains information required by this section.
Tax bills (notices) for county assessed personal property valued in accordance with applicable Department of Revenue and Taxation regulations must include notification of the taxpayer's appeal rights, to include a minimum amount of information of how the taxpayer should file his appeal, to whom, and within what time period."
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SECTION 212. Section 12-37-2660 of the 1976 Code is amended to read:
"Section 12-37-2660. The Department of Revenue and Taxation shall furnish the auditor of each county a listing of license registration applications to be mailed to the owners of motor vehicles in the respective counties. The listings shall be furnished the auditor as soon as possible but no later than sixty days before the applications are mailed by the department to vehicle owners. Listings shall be in the form of computer tapes or printouts."
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SECTION 213. Section 12-37-2670 of the 1976 Code is amended to read:
"Section 12-37-2670. No license shall be issued by the Department of Revenue and Taxation for a period in excess of twelve months. If a license is transferred by the department from one vehicle to another, no tax shall be levied upon the vehicle to which the license is transferred until the license has expired."
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SECTION 214. Section 12-37-2680 of the 1976 Code is amended to read:
"Section 12-37-2680. The assessed value of the vehicle shall be determined as of the first day of the month preceding that in which the license is issued. The assessed values shall be published in guides or manuals by the South Carolina Department of Revenue and Taxation and provided to the auditor of each county as often as may be necessary to provide for current values. When the value of any vehicle is not set forth in the guide or manual the auditor shall determine the value from other available information. Any person aggrieved by the valuation of his motor vehicle may appeal to the South Carolina Department of Revenue and Taxation and the department may increase, decrease or affirm the value so determined."
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SECTION 215. Section 12-37-2725 of the 1976 Code is amended to read:
"Section 12-37-2725. When the title to a licensed vehicle is transferred, the license plate and registration certificate issued the transferor may be returned for cancellation. The license plate and registration certificate must be delivered to the auditor of the county of the vehicle's registration and tax payment. A request for cancellation must be made in writing to the auditor upon forms approved by the Department of Revenue and Taxation. The auditor, upon receipt of the license plate, registration certificate, and the request for cancellation, shall order and the treasurer shall issue a refund of property taxes paid by the transferor on the vehicle. The amount of the refund is that proportion of the tax paid that is equal to that proportion of the complete months remaining on the license plate and registration certificate that is being canceled to its whole license and registration period. The auditor shall, within five days thereafter, deliver the license plate, registration certificate, and the written request for cancellation to the Department of Revenue and Taxation. Upon receipt thereof, the Department of Revenue and Taxation shall cancel the license plate and registration certificate and may not reissue the same."
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SECTION 216. Section 12-37-2727 of the 1976 Code is amended to read:
"Section 12-37-2727. The provisions of Section 12-37-2750 further apply to license plates and registration certificates issued and unassigned by the Department of Revenue and Taxation to a motor vehicle between September 4, 1984, and April 29, 1985. In the event an issued and unassigned license plate or registration certificate was lost, destroyed, or delivered to the Department of Revenue and Taxation, the owner shall present proof thereof to the county auditor along with the request for cancellation. The auditor, upon receipt of the cancellation request and the license plate, registration certificate, or the proof of loss of the same, must order the refund of the tax. The auditor must forward to the Department of Revenue and Taxation the request for cancellation, the license plate and the registration certificate, or the proof of the same being lost, destroyed, or delivered to the department. The department upon receipt thereof shall cancel the license plate and registration."
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SECTION 217. Section 12-39-180 of the 1976 Code is amended to read:
"Section 12-39-180. Each county auditor, after receiving from the Comptroller General and from such other officers and authorities as are legally empowered to determine the rate or amount of taxes to be levied for the various purposes authorized by law statements of the rates and sums to be levied for the current year, shall forthwith proceed to determine the sums to be levied upon each tract and lot of real property and upon the amount of personal property, monies, and credits listed in his county in the name of each person, which must be assessed equally on all real and personal property subject to such taxes and set down in one or more columns in the manner and form as the Comptroller General shall prescribe. The Department of Revenue and Taxation or the county auditor shall place a minimum assessment of at least twenty dollars on all property that generates a tax bill."
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SECTION 218. Section 12-43-210 of the 1976 Code is amended to read:
"Section 12-43-210. (A) All property must be assessed uniformly and equitably throughout the State. The South Carolina Department of Revenue and Taxation shall promulgate regulations to ensure equalization which must be adhered to by all assessing officials in the State.
(B) No reassessment program may be implemented in a county unless all real property in the county, including real property classified as manufacturing property, is reassessed in the same year."
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SECTION 219. Section 12-43-220 of the 1976 Code is amended to read:
"Section 12-43-220. Except as otherwise provided, the ratio of assessment to value of property in each class shall be equal and uniform throughout the State. All property presently subject to ad valorem taxation shall be classified and assessed as follows:
(a) All real and personal property owned by or leased to manufacturers and utilities and used by the manufacturer or utility in the conduct of the business must be taxed on an assessment equal to ten and one-half percent of the fair market value of the property.
Real property owned by or leased to a manufacturer and used primarily for research and development is not considered used by a manufacturer in the conduct of the business of the manufacturer for purposes of classification of property under item (a) of this section. The term `research and development' means basic and applied research in the sciences and engineering and the design and development of prototypes and processes.
Real property owned by or leased to a manufacturer and used primarily as an office building is not considered used by a manufacturer in the conduct of the business of the manufacturer for purposes of classification of property under item (a) of this section if the office building is not located on the premises of or contiguous to the plant site of the manufacturer.
Real property owned by or leased to a manufacturer and used primarily for warehousing and wholesale distribution of clothing and wearing apparel is not considered used by a manufacturer in the conduct of the business of the manufacturer for purposes of classification of property under item (a) of this section if the property is not located on the premises of or contiguous to the manufacturing site of the manufacturer.
(b) All inventories of business establishments shall be taxed on an assessment equal to six percent of the fair market value of such property and all power driven farm machinery and equipment except motor vehicles registered with the South Carolina Department of Revenue and Taxation owned by farmers and used on agricultural lands as defined in this article shall be taxed on an assessment equal to five percent of the fair market value of such property; provided, that all other farm machinery and equipment and all livestock and poultry shall be exempt from ad valorem taxes.
(c) The legal residence and not more than five acres contiguous thereto, when owned totally or in part in fee or by life estate and occupied by the owner of the interest, is taxed on an assessment equal to four percent of the fair market value of the property. When the legal residence is located on leased or rented property and the residence is owned and occupied by the owner of a residence on leased property, even though at the end of the lease period the lessor becomes the owner of the residence, the assessment for the residence is at the same ratio as provided in this item. If the lessee of property upon which he has located his legal residence is liable for taxes on the leased property, then the property upon which he is liable for taxes, not to exceed five acres contiguous to his legal residence, must be assessed at the same ratio provided in this item. If this property has located on it any rented mobile homes or residences which are rented or any business for profit, this four percent value does not apply to those businesses or rental properties. This subsection (c) is not applicable unless the owner of the property or his agents make written application to the county assessor on or before the first penalty date for taxes due for the first tax year in which the assessment under this article is made and certify to the following statement: `Under the penalty of perjury I certify that I meet the qualifications for the special assessment ratio for a legal residence as of January first of the appropriate tax year'.
The assessor shall have printed in the local newspaper during the period January through December at least five notices calling to public attention the provisions of filing the application as a prerequisite for claiming this classification. Failure to file within the prescribed time constitutes abandonment of the owner's right for this classification for the current tax year, but the local taxing authority may extend the time for filing upon a showing satisfactory to it that the person had reasonable cause for not filing on or before the first penalty date.
No further applications are necessary while the property for which the initial application was made continues to meet the eligibility requirements of this item. The owner shall notify the assessor of any change in use within six months of the change.
If a person signs the certification and is not eligible or thereafter loses eligibility and fails to notify the county assessor within the allotted time, a penalty of ten percent and interest at the rate of one-half of one percent a month must be paid on the difference between the amount that was paid and the amount that should have been paid, but not less than thirty dollars nor more than the current year's taxes.
The governing body of the county concerned as an alternative may elect, determine, and direct that the tax assessor shall determine and designate the various properties to be subject to the special assessment ratio provided in this subsection. Upon the determination by the governing body of the county concerned, no publication of notice is required and no application or other certification is then required.
(d) (1) Agricultural real property which is actually used for such agricultural purposes shall be taxed on an assessment equal to:
(A) Four percent of its fair market value for such agricultural purposes for owners or lessees who are individuals or partnerships and certain corporations which do not:
(i) Have more than ten shareholders.
(ii) Have as a shareholder a person (other than an estate) who is not an individual.
(iii) Have a nonresident alien as a shareholder.
(iv) Have more than one class of stock.
(B) Six percent of its fair market value for such agricultural purposes for owners or lessees who are corporations, except for certain corporations specified in (A) above.
(2) (A) `Fair market value for agricultural purposes', when applicable to land used for the growth of timber, is defined as the productive earning power based on soil capability to be determined by capitalization of typical cash rents of the lands for timber growth or by capitalization of typical net income of similar soil in the region or a reasonable area of the region from the sale of timber, not including the timber growing thereon, and when applicable to land used for the growth of other agricultural products the term is defined as the productive earning power based on soil capability to be determined by capitalization of typical cash rents or by capitalization of typical net annual income of similar soil in the region or a reasonable area of the region, not including the agricultural products thereon. Soil capability when applicable to lands used for the growth of timber products means the capability of the soil to produce such timber products of the region considering any natural deterrents to the potential capability of the soil as of the current assessment date. The term, when applicable to lands used for the growth of other agricultural products, means the capability of the soil to produce typical agricultural products of the region considering any natural deterrents to the potential capability of the soil as of the current assessment date. The term `region' means that geographical part of the State as determined by the department to be reasonably similar for the production of the agricultural products. After average net annual earnings have been established for agricultural lands, they must be capitalized to determine use-value of the property based on a capitalization rate which includes:
1. an interest component;
2. a local property tax differential component;
3. a risk component;
4. an illiquidity component.
Each of these components of the capitalization rate must be based on identifiable factors related to agricultural use of the property. The interest rate component is the average coupon (interest) rate applicable on all bonds which the Federal Land Bank of Columbia, which serves South Carolina farmers, has outstanding on July first of the crop-years being used to estimate net earnings and agricultural use-value. Implementation of the provisions contained in this section is the responsibility of the department.
(B)(i) For tax year 1988 and subsequent tax years, fair market value for agricultural purposes must be determined by adjusting the applicable base year value by an amount equal to the product of multiplying the applicable base year value by a percentage factor obtained through the formula provided in this item. For tax year 1988, the applicable base year is 1981. After the initial use of the valuation method provided in this item for tax year 1988, fair market value for agricultural purposes must be redetermined every three years if the percentage factor in that year exceeds five percent but at least every six years regardless of the percentage.
(ii) The percentage factor provided in this item is derived from the most recent edition of the United States Department of Agriculture publication `AGRICULTURAL LAND VALUES AND MARKETS', specifically, from `Table 1--Farm Real Estate Values: Indexes of the average value per acre of land and buildings . . .' as listed for this State. The formula to determine the applicable percentage factor is the index of the year of change less the index of the base year with the resulting amount being divided by the index of the base year and rounded to the nearest whole number. For purposes of the formula, the base year is the last year in which values were adjusted under this item.
(3) Agricultural real property does not come within the provisions of this section unless the owners of the real property or their agents make a written application therefor on or before May first of the first tax year in which the special assessment is claimed. The application for the special assessment must be made to the assessor of the county in which the agricultural real property is located, on forms provided by the county and approved by the department and a failure to apply constitutes a waiver of the special assessment for that year. The governing body may extend the time for filing upon a showing satisfactory to it that the person had reasonable cause for not filing on or before May first. No additional annual filing is required while the use classification of the property is unchanged. The owner shall notify the assessor within six months of a change in use. For failure to notify the assessor of a change in use, in addition to any other penalties provided by law, a penalty of ten percent and interest at the rate of one-half of one percent a month must be paid on the difference between the amount that was paid and the amount that should have been paid, but not less than thirty dollars nor more than the current year's taxes.
(4) When real property which is in agricultural use and is being valued, assessed, and taxed under the provisions of this article, is applied to a use other than agricultural, it is subject to additional taxes, hereinafter referred to as roll-back taxes, in an amount equal to the difference, if any, between the taxes paid or payable on the basis of the valuation and the assessment authorized hereunder and the taxes that would have been paid or payable had the real property been valued, assessed, and taxed as other real property in the taxing district, in the current tax year (the year of change in use) and each of the five tax years immediately preceding in which the real property was valued, assessed, and taxed as herein provided. If in the tax year in which a change in use of the real property occurs the real property was not valued, assessed, and taxed under this article, then the real property is subject to roll-back taxes for each of the five tax years immediately preceding in which the real property was valued, assessed, and taxed hereunder. In determining the amounts of the roll-back taxes chargeable on real property which has undergone a change in use, the assessor shall for each of the roll-back tax years involved ascertain:
(A) the fair market value of such real property under the valuation standard applicable to other real property in the same classification;
(B) the amount of the real property assessment for the particular tax year by multiplying such fair market value by the appropriate assessment ratio provided in this article;
(C) the amount of the additional assessment on the real property for the particular tax year by deducting the amount of the actual assessment on the real property for that year from the amount of the real property assessment determined under (B) of this section;
(D) the amount of the rollback for that tax year by multiplying the amount of the additional assessment determined under (C) of this section by the property tax rate of the taxing district applicable for that tax year.
(e) All other real property not herein provided for shall be taxed on an assessment equal to six percent of the fair market value of such property.
(f) Except as specifically provided by law all other personal property shall be taxed on an assessment of ten and one-half percent of fair market value of such property except that commercial fishing boats shall be taxed on an assessment of five percent of fair market value. As used in this item `commercial fishing boats' shall mean boats licensed by the Department of Natural Resources which are used exclusively for commercial fishing, shrimping or crabbing.
(g) All real and personal property owned by or leased to companies primarily engaged in the transportation for hire of persons or property and used by such companies in the conduct of such business and required by law to be assessed by the department shall be taxed on an assessment equal to nine and one-half percent of the fair market value of such property.
The department shall apply an equalization factor to real and personal property owned by or leased to transportation companies for hire as mandated by federal legislation.
Notwithstanding any other provision of this article, on June 3, 1975, if it is found that there is a variation between the ratios being used and those stated in this section, the county may provide for a gradual transition to the ratios as herein provided for over a period not to exceed seven years; provided, however, that all property within a particular classification shall be assessed at the same ratio, provided, further, however, that all property enumerated in subsection (a) shall be assessed at the ratio provided in such subsection and the property enumerated in subsections (b), (c), (d), (e), (f), and (g) shall be increased or decreased to the ratios set forth in this article by a change in the ratio of not less than one-half of one percent per year nor more than one percent per year. Provided, however, that notwithstanding the provisions of this section, a county may, at its discretion, immediately implement the assessment ratios contained in subsections (b), (c), (d), (e), and (f). Provided, however, that livestock shall not be subject to ad valorem taxation unless such livestock is physically located within the State for a period in excess of nine months. Provided, that this section shall not apply to farm animals and farm equipment in use on a farm in those counties which do not tax such property as of June 3, 1975.
Provided, however, all agricultural or forest land within easements granted to public bodies, agencies, railroads, or utilities for rights of way of thirty feet in width or greater shall be assessed at the same cropland value per acre as soil class 7 in schedule 1 of R 117-126 of the State Department of Revenue and Taxation. In order to receive such assessment the landowner must apply to the tax assessor of the county where the easement is located, with documentation of the existence, location, and amount of acreage contained in the easement."
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SECTION 220. Section 12-43-280(B) of the 1976 Code is amended to read:
"(B) The Department of Revenue and Taxation shall review ad valorem tax collections in each county for reassessment years to insure compliance with the limitation imposed by this section. The department shall promptly notify the governing body of the county if the limit has been exceeded and the total amount of any increased tax collections resulting solely from the program of equalization and reassessment. The governing body of the county shall immediately transfer that total amount to a separate, segregated fund, which must be used to roll back the tax millage in the following year."
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SECTION 221. Section 12-43-300 of the 1976 Code is amended to read:
"Section 12-43-300. (A) Whenever the market value estimate of any property is fixed by the assessor at a sum greater by one thousand dollars or more than the amount returned by the owner or his agent, or whenever any property is valued and assessed for taxation which has not been returned or assessed previously, the assessor shall, on or before July first, or as soon thereafter as may be practicable, in the year in which the valuation and assessment is made give written notice thereof to the owner of the property or his agent. In reassessment years, the written reassessment notice to owners or agents must be given by July first. If there is no timely written notice, the prior year's assessed value must be the basis for assessment for the current taxable year. The notice must include the prior market value, the total market value estimate, the value estimate if applicable, the assessment ratio, the total new assessment, the percentage changes over the prior market value, if there is no change in use or physical characteristics of the property, number of acres or lots, location of property, tax map, appeal procedure, and other pertinent ownership and legal description data required by the South Carolina Department of Revenue and Taxation. The notice may be served upon the owner or his agent personally or by mailing it to the owner or his agent at his last known place of residence which may be determined from the most recent listing in the applicable telephone directory, Department of Revenue and Taxation Motor Vehicle Registration List, county treasurer's records, or official notice from the property owner or his agent. The owner or his agent, if he objects to the valuation and assessment, shall serve written notice of his objection upon the assessor within thirty days of the date of the mailing of the notice. In years when there is no notice of appraisal because of a less than one thousand dollar change or no change in the appraised or assessed value, the owner or agent has until March first to serve written notice of objection upon the assessor of the appraised or assessed value. In those years, failure to serve written notice of objection by March first constitutes a waiver of the owner's right of appeal for that tax year and the assessor is not required to review any request filed after March first. The assessor shall then schedule a conference with the owner or agent within twenty days of receipt of the notice. If the assessor requests it, the owner, within thirty days after the conference, shall complete and return to the assessor the form as may be approved by the Department of Revenue and Taxation relating to the owner's property and the reasons for his objection. Within thirty days after the conference, or as soon thereafter as practicable, the assessor shall mail written notice of his action upon the objection to the owner. The owner or agent, if still aggrieved by the valuation and assessment, may appeal from the action to the Board of Assessment Appeals by giving written notice of the appeal and the grounds thereof to the assessor within thirty days from the date of the mailing of the notice. The assessor shall notify promptly the Board of Assessment Appeals of the appeal.
(B) The governing body of the county may by ordinance extend the time for filing an objection to the valuation and assessment of real property resulting from reassessment within a county.
(C) The Department of Revenue and Taxation shall prescribe a standard reassessment form designed to contain the information required in subsection (A) in a manner that may be understood easily."
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SECTION 222. The first paragraph of Section 12-43-305 of the 1976 Code is amended to read:
"Upon receipt of written notice of appeal of a property valuation and if it is reasonably expected that the appeal may delay the assessment of the property beyond December thirty-first of the tax year, the assessing officer shall prepare immediately an assessment for the property under appeal based upon eighty percent of the assessed value of the property for the current year. The Department of Revenue and Taxation shall notify the auditor of the property under the jurisdiction of the department which is under appeal. The auditor shall adjust the assessment of property under appeal to eighty percent of the assessed value and enter the adjusted assessment on the tax duplicate and the tax must be paid as in other cases."
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SECTION 223. Section 12-43-320 of the 1976 Code is amended to read:
"Section 12-43-320. Any or all rules and regulations promulgated by the South Carolina Department of Revenue and Taxation for the implementation of the provisions of Act 208 of 1975 [Sections 12-37-90 to 12-37-110, 12-39-340, 12-39-350, 12-43-210 to 12-43-310, 12-37-970] may be declared null and void by passage of a joint resolution expressing such intention. Such rules and regulations declared null and void will be considered repealed on and after the date of passage of the joint resolution."
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SECTION 224. Section 12-43-335 of the 1976 Code is amended to read:
"Section 12-43-335. For the purpose of assessing property of merchants and related businesses, as provided by Section 12-37-970, the Department of Revenue and Taxation shall follow the classifications of the Standard Industrial Classification Manual, Bureau of the Budget, 1987 edition, as set out below:
1. Division C;
2. Division E, Major Group 48, except numbers 481 and 482;
3. Division F;
4. Division G;
5. Division I, Major Groups 72, 73, 75, 76, 78, and 79."
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SECTION 225. The third paragraph of Section 12-45-70 of the 1976 Code is amended to read:
"The county official charged with the collection of taxes shall send a list of the institutions collecting the taxes to the Department of Revenue and Taxation. Each institution shall certify to the department that the taxes have been paid, and the department may accept certification in lieu of the tax receipt given to the taxpayer if that certification contains the information required in Section 12-37-2650."
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SECTION 226. Section 12-47-10 of the 1976 Code is amended to read:
"Section 12-47-10. The collection of state, county, city, town, and school taxes and taxes voted by townships in aid of railroads when the roads have been completed through such townships shall not be stayed or prevented by any injunction, writ, or order issued by any court or judge. And no writ, order, or process of any kind whatsoever staying or preventing the Department of Revenue and Taxation or any officer of the State charged with a duty in the collection of taxes from taking any steps or proceeding in the collection of any tax, whether such tax is legally due or not, shall in any case be granted by any court or the judge of any court."
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SECTION 227. Section 12-47-60 of the 1976 Code is amended to read:
"Section 12-47-60. With respect to taxes and license fees administered by the South Carolina Department of Revenue and Taxation, whenever any amount of taxes, license fees, penalties, and interest are recovered by successful litigation in the courts of this State, such amounts recovered shall bear interest at the rate of one-half of one percent per month from the date such taxes, license fees, penalties and interest were paid to the date the order for refund or credit was issued, and such interest shall be paid in the same manner and receive the same preference as the amounts recovered."
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SECTION 228. Section 12-49-90 of the 1976 Code is amended to read:
"Section 12-49-90. The courts of this State shall recognize and enforce liabilities for taxation lawfully imposed by other states which extend like comity to this State. The South Carolina Department of Revenue and Taxation, with the assistance of the Attorney General, is hereby empowered to bring suit in the courts of other states to collect taxes legally due this State. The officials of other states which extend a like comity to this State are empowered to sue for the collection of such taxes in the courts of this State. A certificate by the Secretary of State that such officers have authority to collect the tax shall be conclusive evidence of such authority."
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SECTION 229. Section 12-49-271 of the 1976 Code is amended to read:
"Section 12-49-271. When the sheriff receives from the county treasurer a list of delinquent taxpayers and the list includes mobile homes and modular homes upon which to levy, the sheriff shall forward to the Department of Revenue and Taxation a form substantially as set out below requesting the name and address of all lienholders shown on the Certificate of Title. The sheriff shall not advertise the sale of property without a return of this form:
`To the Department of Revenue and Taxation:
I have been instructed by the County Treasurer to levy and sell the following personal property:
Please provide me with the lienholders' names and addresses as shown on the Certificate of Title:
NAME:
ADDRESS:
DESCRIPTION OF COLLATERAL:
I.D. NUMBER:
LIENHOLDER:
LIENHOLDERS' ADDRESS:'"
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SECTION 230. The last paragraph of Section 12-49-290 of the 1976 Code is amended to read:
"The right, interest, and security of any lienholder who has filed his security interest with the Department of Revenue and Taxation and which security interest is shown on the Certificate of Title shall in no way be affected by a tax sale made pursuant to this chapter unless the provisions of Section 12-49-225 are complied with."
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SECTION 231. Section 12-51-135 of the 1976 Code is amended to read:
"Section 12-51-135. If a warrant, which has been filed with the clerk of court in any county, is determined by the Department of Revenue and Taxation to have been issued and filed in error, the clerk of court, upon notification by the Department of Revenue and Taxation, must remove the warrant from its book."
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SECTION 232. Section 12-53-10 of the 1976 Code is amended to read:
"Section 12-53-10. All the powers and duties now imposed or conferred by law upon sheriffs or tax collectors of any county in this State with respect to the collection of any amounts due the State Department of Revenue and Taxation, are hereby imposed or conferred upon the department, or its duly authorized representatives. Such portions of the law as have to do with the collection of unpaid taxes, penalties, interest, or costs, and the attachment, levy, and sale of properties for the purpose of enforcing the payment of such amounts which may be due the department, are hereby imposed or conferred upon the department, or its duly authorized representatives. The department, or its duly authorized representatives, shall in all respects and with like effect proceed upon the property and rights to property, both real and personal, as is now provided by law with respect to sheriffs or tax collectors."
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SECTION 233. Section 12-53-210 of the 1976 Code is amended to read:
"Section 12-53-210. If the South Carolina Department of Revenue and Taxation finds or in its opinion has reason to believe that the assessment and collection of any tax or license fee or income taxes withheld or any interest or penalty pertaining thereto, for any year, current or past, will be jeopardized in whole or in part by delay, the Department of Revenue and Taxation may mail or issue a notice of such finding to the taxpayer, together with a demand for immediate payment of the tax or license or income taxes withheld, declared to be in jeopardy, including interest, penalties and additions thereto. In the case of a tax or license for a current period, the department may declare the taxable period of the taxpayer or licensee immediately terminated and shall cause notice of such finding and declaration to be mailed or issued to the taxpayer, together with a demand for immediate payment of the tax based on the period declared terminated, and such tax shall be immediately due and payable whether or not the time otherwise allowed by law for filing a return and paying the tax has expired. Any such assessment provided for in this section shall be immediately due and payable. If the assessment is not paid upon demand of the department, the department shall forthwith issue a warrant for distraint against the property, real and personal, of the taxpayer, which shall be collected in the same manner and with like effect as provided under the terms of Sections 12-53-10 to 12-53-60."
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SECTION 234. Section 12-53-220 of the 1976 Code is amended to read:
"Section 12-53-220. When a jeopardy assessment has been made pursuant to Section 12-53-210, the collection of the whole or any amount of such assessment may be stayed by filing with the Department of Revenue and Taxation, within such time as may be fixed by regulations prescribed by the department, a bond in an amount as to which a stay is desired, conditioned for the payment of the amount hereinafter specified at the time when such tax would be due if such tax is not due at the time of the making of such jeopardy assessment, or if such tax is due or overdue at the time of the making of such jeopardy assessment, at such time as may be fixed by such regulations. A bond as contemplated in this article shall be in the form of a surety bond issued by a surety company licensed to do business in South Carolina by the insurance department of this State, or cash which shall not bear interest, or negotiable securities subject to the approval of the State Treasurer. The bond in all instances would be conditioned upon the payment of the full amount of the assessment together with applicable interest, penalties and costs of collection."
Name changed
SECTION 235. Section 12-54-10 of the 1976 Code is amended to read:
"Section 12-54-10. The word `person' or `taxpayer', for the purpose of this chapter, unless otherwise required by the text, includes any individual, firm, partnership, association, corporation, receiver, trustee, fiduciary, or any other group or combination acting as a unit and the State or any agency or instrumentality, authority, or political subdivision thereof, including municipalities. `Commission' or `Department' means the South Carolina Department of Revenue and Taxation."
Name changed
SECTION 236. Section 12-54-230 of the 1976 Code is amended to read:
"Section 12-54-230. The Employment Security Commission shall allow the South Carolina Department of Revenue and Taxation access to the information contained in the Employer's Quarterly Report and any by-product of the report. The report or information extracted from the report is not subject to provisions of Chapter 4 of Title 30, the Freedom of Information Act."
Name changed
SECTION 237. Section 12-54-240(B)(7), (11), and (12) of the 1976 Code are amended to read:
"(7) submission of taxpayer names, home addresses, and social security numbers to the State Election Commission and Department of Revenue and Taxation to effect the purposes of Section 14-7-130.
(11) disclosure of information contained on any return to the South Carolina Employment Security Commission, Department of Revenue and Taxation, or to the Department of the Treasury, Alcohol, Tobacco and Firearms Division.
(12) disclosure of whether a resident or nonresident tax return was filed by any particular taxpayer to the South Carolina Department of Natural Resources."
Name changed
SECTION 238. Section 12-54-250 of the 1976 Code is amended to read:
"Section 12-54-250. (A) The South Carolina Department of Revenue and Taxation may require, consistent with the cash management policies of the State Treasurer, that any person owing twenty thousand dollars or more in connection with any return, report, or other document to be filed with the department shall pay the tax liability to the State no later than the date the payment is required by law to be made in funds which are available immediately to the State on the date of payment. Payment in immediately available funds may be made by any means established by the department, with the approval of the State Treasurer, which insures the availability of those funds to the State on the date of payment. Evidence of the payment must be furnished to the department on or before the due date of the tax as provided by law. Failure to make timely payment in immediately available funds or failure to provide evidence of payment in a timely manner subjects the taxpayer to penalties and interest as provided by law for delinquent or deficient tax payments.
(B) The department by rule may prescribe alternative periodic filing and payment dates later than the dates otherwise provided by law for any taxes collected by the department in those instances where it is considered to be in the best interest of the State. An alternative date may not be later than the last day of the month in which the tax was otherwise due.
(C) The department may prescribe rules and the State Treasurer banking procedures necessary for the administration of the provisions of this section.
(D) Payment by immediately available funds and filing of the return are considered simultaneous acts with respect to penalties and interest for failure to file and failure to pay. Penalties and interest must be calculated based on the later of the return postmark date or payment date."
Name changed
SECTION 239. Section 12-54-260 of the 1976 Code is amended to read:
"Section 12-54-260. (A) As used in this section:
(1) `Delinquent taxes' mean state taxes including penalty, interest, and costs for which a warrant for distraint has been issued and filed by the department.
(2) `Commission' or `Department' means the South Carolina Department of Revenue and Taxation.
(3) `Payment owed by the State' means amounts for which the Comptroller General is responsible for payment and which result from goods or services rendered or to be rendered to the State or its agencies or political subdivisions.
(4) `Collecting agency' means the Comptroller General.
(B) The department may collect delinquent taxes by means of a setoff procedure as provided in this section.
(C) The department shall provide to the Comptroller General the names, social security numbers, or federal employer identification numbers, or other identifying information considered necessary by the Comptroller General to determine whether a payment owed by the State to a taxpayer is a payment due a taxpayer owing delinquent taxes.
(D) Based solely on the information furnished by the department, the Comptroller General shall determine if a payment owed by the State is payable to a taxpayer owing delinquent taxes and on this determination he shall remit the payment to the department. The department shall promptly notify the delinquent taxpayer of the payment. Remitting of the payment to the department terminates the Comptroller General's responsibilities under this section, except as otherwise provided by law. The department's notice to the taxpayer must:
(1) be in writing;
(2) specify the amount paid to the department;
(3) state the total amount the department determines to be due from the taxpayer;
(4) specify the name, address, and telephone number of an employee of the department whom the taxpayer can contact to discuss the delinquent tax liability.
(E) Reviews of setoffs are with the department and information furnished by the department to the Comptroller General is considered correct and reliable for use by the Comptroller General in applying the setoff procedure."
Name changed
SECTION 240. Section 12-54-420(2) of the 1976 Code is amended to read:
"(2) `Commission' or `Department' means the South Carolina Department of Revenue and Taxation."
Name changed
SECTION 241. Section 12-54-430(C) and (D) of the 1976 Code are amended to read:
"(C) All claimant agencies, whenever possible, shall obtain the full name, social security number, address, and any other identifying information, required by regulations promulgated by the department for implementation of this article, from any person for whom the agencies provide any service or transact any business and who the claimant agencies can foresee may become a debtor under the terms of this article.
(D) Upon request from a claimant agency, the department shall furnish the claimant agency the home address, corrected Social Security number or additional Social Security number of any taxpayer whose name has been submitted to the department for collection of a delinquent debt."
Name changed
SECTION 242. Section 12-54-720 of the 1976 Code is amended to read:
"Section 12-54-720. The South Carolina Department of Revenue and Taxation shall administer this article."
Department of Commerce established
SECTION 243. Chapter 1, Title 13 of the 1976 Code is amended to read:
"Article 1
Department of Commerce
Section 13-1-10. (A) The Department of Commerce is established as an administrative agency of state government which is comprised of a Division of State Development, a Division of Savannah Valley Development, a Division of Aeronautics, a Division of Public Railways, and an Advisory Coordinating Council for Economic Development. Each division of the Department of Commerce shall have such functions and powers as provided for by law.
(B) All functions, powers, and duties provided by law to the State Development Board, the Savannah Valley Authority, the South Carolina Aeronautics Commission, the South Carolina Public Railways Commission, and the Coordinating Council for Economic Development, its officers or agencies, are hereby transferred to the Department of Commerce together with all records, property, personnel, and unexpended appropriations. All rules, regulations, standards, orders, or other actions of these entities shall remain in effect unless specifically changed or voided by the department in accordance with the Administrative Procedures Act.
Section 13-1-20. The Department of Commerce shall conduct an adequate statewide program for the stimulation of economic activity to develop the potentialities of the State; manage the business and affairs of the Savannah Valley Development; develop state public airports and an air transportation system that is consistent with the needs and desires of the public; develop the state public railway system for the efficient and economical movement of freight, goods, and other merchandise; and enhance the economic growth and development of the State through strategic planning and coordinating activities.
Section 13-1-30. (A) The Department of Commerce shall be headed by a director, who shall be appointed by the Governor upon the advice and consent of the Senate. The director shall be vested with the duty and authority to oversee, manage, and control the operation, administration, and organization of the department subject only to the laws of this State and the United States. He shall receive such compensation as may be established under the provisions of Section 8-11-160 and for which funds have been authorized in the general appropriation act. He is subject to removal by the Governor as provided in Section 1-3-240.
(B) The Director of the Department of Commerce may appoint a deputy director for each division of the department. Each deputy director shall serve at the pleasure of the director and shall be responsible to the director for the operation of the programs outlined by the director.
Section 13-1-40. At the discretion of the Director of the Department of Commerce an advisory council or councils may be appointed to advise with respect to each broad function which may be the responsibility of the director. Each advisory council shall consist of a group of not more than nine members, consisting of state and local governmental officials and of private individuals of outstanding ability in fields of enterprise related to the particular function with respect to which its advice is desired. The members shall receive no salary or per diem but may be compensated for all actual expenses incurred in the performance of their duties. The members shall serve for terms to be established by the director and may be removed at the pleasure of the director. Governmental officials shall serve on such councils for a period of one year and may be reappointed for successive terms by the director; provided, that their terms shall end with the termination of their office as officials.
Section 13-1-50. The department shall be audited by a certified public accountant or firm of certified public accountants once each year to be designated by the State Auditor. The designated accountant or firm of accountants shall issue audited financial statements in accordance with generally accepted accounting principles, and such financial statements shall be made available annually by October fifteenth to the General Assembly. The costs and expenses of the audit must be paid by the department out of its funds.
Section 13-1-60. If a term or provision of a section of this chapter is found to be illegal or unenforceable, the remainder of this chapter nonetheless remains in full force and effect and the illegal or unenforceable term or provision is deleted and severed from this chapter."
Division of State Development established
SECTION 244. Chapter 1, Title 13 of the 1976 Code is amended by adding:
"Article 3
Division of State Development
Section 13-1-310. The following terms, when used in this article, shall have the following meanings unless the context clearly requires otherwise:
(1) `Agency' means any state officer, department, board, commission, committee, institution, bureau, division or other person or functional group that is authorized to exercise or that does exercise any executive or administrative function of government in the State; when the term `local agency' is used, it shall be construed to mean local political subdivisions of the State; when the term `federal agency' is used, it shall be construed to mean any agency of the government of the United States of America;
(2) `Deputy director' means the Deputy Director for the Division of State Development;
(3) `Division' means the Division of State Development;
(4) `Director' means the Director of the Department of Commerce; and
(5) `State' means the State of South Carolina.
Section 13-1-320. The objectives of the division are to:
(1) conserve, restore, and develop the natural and physical, the human and social, and the economic and productive resources of the State;
(2) promote coordination of the functions and activities of state agencies and act as the official state liaison office between the state, federal, and local planning, research, and development agencies;
(3) promote a system of transportation for the State through development and expansion of the highway, railroad, port, waterway, and airport systems;
(4) promote and correlate state and local activity in planning public works projects;
(5) promote public interest in the development of the State through cooperation with public agencies, private enterprises, and charitable and social institutions;
(6) promote and encourage industrial development, private business and commercial enterprise, agricultural production, transportation, and the utilization and investment of capital within the State;
(7) assist the development of existing state and interstate trade, commerce, and markets for South Carolina goods and in the removal of barriers to the industrial, commercial, and agricultural development of the State;
(8) assist in ensuring stability in employment, increase the opportunities for employment of the citizens of the State, and devise ways and means to raise the living standards of the people of the State;
(9) advance the general welfare of the people.
Section 13-1-330. The division shall consist of a bureau of research, a bureau of planning, a bureau of development, and such other bureaus as the director may establish. Each bureau may be headed by a bureau chief selected on the basis of his technical and administrative qualifications and experience to perform the duties required by his position. The chief for the bureau of research shall be a person thoroughly familiar with the principles of, and experienced in, the methods and techniques of research and economics. The chief for the bureau of planning shall be an industrial engineer experienced in that type of work. The chief for the bureau of development shall be a person thoroughly familiar with the principles of, and experienced in, the methods and techniques of developing a program of advertising and salesmanship.
Section 13-1-340. The director is vested with duties, powers, and responsibilities involved in accomplishing the division's objectives outlined in this article within the appropriations provided by the General Assembly. The director may:
(1) advise and make recommendations to the Governor and the General Assembly on matters concerning the division's objectives;
(2) cooperate with the operating agencies of the State in the development of plans;
(3) have access to the records and studies of each state agency pertaining to the division's objectives;
(4) conduct studies on his own initiative pertaining to the division's objectives and others at the request of the Governor, the General Assembly, or state or local agencies;
(5) make special studies on area problems or specific subjects, establish local agencies, and furnish staff or financial aid;
(6) stimulate and encourage local, state, and federal governmental agencies with similar and related objectives and purposes and cooperate with local, regional, and federal planning and development programs;
(7) publish and distribute the division's findings through written reports, brochures, magazine and newspaper articles, and other appropriate forms and use the radio, periodicals, and other recognized forms of advertising, personal interviews, exhibits, and displays in order that governmental agencies, corporations, and individual citizens may become acquainted with the development program of the State;
(8) advertise the advantages of the State for industrial, agricultural, and commercial development by paid publicity;
(9) provide information to and make contact with private business enterprises and local, state, and federal governmental agencies to acquaint them with industrial, agricultural, and commercial opportunities in the State and encourage the establishment of new or the expansion of existing industries and enterprises;
(10) provide advice upon request by local, state, and federal agencies, private citizens, and business and commercial enterprises upon matters of economic development, industrial and business expansion, and agricultural activity upon which his knowledge, sources of information, and findings and decisions qualify him to speak;
(11) accept gifts, grants, funds, and property to accomplish the division's objectives, administer and disburse gifts, grants, and funds, and dispose of property to counties, municipalities, and local agencies performing a public service or function which may disburse the gifts, grants, and funds or make the property available to eligible participants in a program established to perform and implement the public service or function subject to the approval of the Budget and Control Board.
Section 13-1-350. The former State Planning Board, State Board of Housing, Building Council of South Carolina, South Carolina Commerce Development Board, South Carolina Intra-Coastal Waterway Commission, South Carolina Board for Promotion of External Trade, and Natural Resources Commission and their successor the State Development Board having been abolished, the director shall have the following additional duties formerly imposed on such boards, commissions and councils:
(1) State Planning Board:
(a) to confer and cooperate with the executive, legislative and planning authorities of the United States and of neighboring states and of subdivisions thereof;
(b) to promote interest in the understanding of the problems of state planning; and
(c) to cooperate with the United States and any of its agencies in the planning, conservation, utilization and development of state resources and in the planning of its public works programs and to act, when so designated, as an agency of the United States, or of any agency thereof.
(2) State Board of Housing: to perform the duties imposed upon him under Title 31 of this Code;
(3) Building Council of South Carolina: to promulgate and recommend to the General Assembly of the State a building code for adoption;
(4) Commerce Development Board:
(a) to purchase, hold, use, lease, mortgage, sell, transfer, convey, assign, pledge or otherwise to acquire, encumber or dispose of any property, real, personal or mixed, or any estate or interest therein, including, but without limiting the foregoing, stock in any corporation;
(b) to employ attorneys upon such reasonable basis of compensation as may be agreed upon, or as he may determine, commensurate with the services rendered or to be rendered to the end that no excessive or unreasonable fees or compensation shall be allowed;
(c) to build, acquire, construct and maintain power houses and any and all structures, ways and means necessary, useful or customarily used and employed in the construction of highways, in the construction and operation of railroads and in the manufacture, generation and distribution of electricity and any and all other kinds of power, including power transmission lines, poles, telephone and telegraph lines, substations, transformers and generally all things used or useful in the manufacture, distribution and purchase of power and electricity; provided, that electric current produced shall be used by the director and that none of it shall be sold;
(d) to acquire or to build, construct, equip, maintain and operate one or more railroads with any motive power, one or more highways or other methods, means or ways of commerce or transportation or of communication, telegraph or telephone lines, electric lines, pipe lines, commissaries, houses, camps, lakes, fills, dams, reservoirs, ditches, drains, roads, tunnels, culverts, bridges, conduits, shops and depots and equipment; provided, that telegraph or telephone lines shall be used by the director and that no telegraph or telephone service shall be sold to the general public;
(e) to engage in the business of a common carrier of freight or passengers for hire;
(f) to build, construct, equip, maintain and operate, or cause the same to be done, a railroad or a highway connecting the existing lines of railroad at Walhalla, South Carolina, and at or near Maryville, Tennessee, or as near to such points as practicable and to do every act and thing necessary or proper to accomplish that result and to secure improvement of such existing lines connecting the same with the Atlantic seaboard;
(g) to transport goods, freight, mail, passengers and intelligence for hire and to fix and collect proper charges therefor;
(h) to construct or establish parks or playgrounds for the use, benefit, recreation and amusement of the people of this State under such rules and regulations and subject to such charges as it may establish, determine or fix, with all necessary or proper appurtenances, roadways, lakes, reservoirs, pipe lines, wires, buildings or other structures and equipment which it may from time to time deem desirable;
(i) to take such steps as may be proper to prevent and control soil erosion and floods in the areas served by it;
(j) to cooperate with the United States to promote the national defense;
(k) to develop and increase commerce, intrastate, interstate and foreign, by shortening and improving existing routes, by constructing new routes and facilities and by equipping, maintaining and operating or leasing the same, or causing it to be done, by procuring or endeavoring to procure a reduction in freight, passenger, power, light, water, telegraph and telephone rates and tolls and by any other means or method which shall tend so to do and securing to the people of this State the annual saving of large sums and an improvement in their living conditions and general welfare;
(l) to cooperate with the health authorities in the areas served by it to the end that the public health may be improved and disease and suffering reduced;
(m) to fix, alter, charge and collect tolls, freight and other charges for the use of the division's facilities or for the services rendered by or for any commodities furnished by it, at rates to be determined by the director, such rates to be at least sufficient to provide for payment of all expenses of the director under this paragraph (4) of this section, the conservation, maintenance and operation of its facilities and properties, the payment of principal and interest on its notes, bonds and other evidences of indebtedness or obligation and to fulfill the terms and provisions of any agreements made with the purchasers or holders of any of the division's notes, bonds or other evidences of indebtedness or obligation;
(n) to have the power of eminent domain;
(o) to acquire by purchase, gift, condemnation or in any other manner any lands, waters, water rights, riparian rights, flowage rights, rights of way, easements, licenses, franchises, engineering data, maps, construction plans or estimates or any other property of any kind, real, personal or mixed, necessary or useful in carrying out any of his powers;
(p) to borrow money, to make and issue negotiable notes, bonds and other evidences of indebtedness and to secure the payment of such obligations or any part thereof by mortgage, lien, pledge or deed of trust on any or all of the division's property, contracts, franchises or revenues and to make such agreements with the purchasers or holders of such notes, bonds or other evidences of indebtedness or with others in connection with any such notes, bonds or other evidences of indebtedness, whether issued or to be issued, as the director shall deem advisable and in general to provide for the security for such notes, bonds or other evidences of indebtedness and the rights of the holders thereof;
(q) to endorse or otherwise to guarantee the obligations of any corporation all of the voting stock of which the division may own or acquire;
(r) to mortgage, pledge, hypothecate or otherwise to encumber any or all of the division's property, real, personal or mixed, facilities or revenues as security for notes, bonds, evidences of indebtedness or other obligations;
(s) to borrow money from the United States or any corporation or agency created, designed or established by the United States;
(t) to exercise the powers and to do the things authorized by paragraph (4) of this section either by and with his own efforts and resources or to procure or to cause the same to be done by the United States or any agency or instrumentality thereof, by any one or more of the states affected or their political subdivisions, agencies or instrumentalities, by any private corporation, association or individual, contractor or otherwise or by the joint efforts of any or all of them or by cooperation with any or all of them, having in mind that the primary objective to be achieved is the construction, maintenance and operation of the railroad, highways, lines of communication and other facilities authorized by this paragraph, regardless of the particular method, manner or agency by or through which the same may be done, and to do any and all acts and things and to make any and all agreements or contracts necessary thereunto, including also the power to lease the whole or any part of the division's facilities or to contract or agree upon a particular method, manner or agency of or for the maintenance or operation of such facilities;
(u) to make, alter and repeal reasonable rules and regulations governing the use of the division's facilities and to fix and collect the charges, tolls, prices or rate of compensation it shall receive for the same, but nothing herein contained shall prevent the director, when in his opinion the public interest will best be served thereby and when the division's financial condition will permit, from allowing the use of its parks, places of amusement and recreation, roads, highways and the like, to be designated by the director from time to time, free of charge or at a merely nominal charge for the benefit of the people of this State;
(v) to sell or otherwise to dispose of any surplus property which the division may acquire and which the director may decide is not needed; and
(w) to have all additional powers, not inconsistent with this article, that are vested by law in common carriers of freight, passengers, electricity and intelligence for hire and in corporations generally.
(5) South Carolina Intra-Coastal Waterway Commission: to perform the duties imposed upon it by Chapter 5 of Title 3 of this Code;
(6) Board for Promotion of External Trade:
(a) to compile surveys showing the nature and extent of the natural resources and of the manufactured products and raw materials found or produced in the State which may move in domestic or foreign commerce; and
(b) to determine the areas throughout the world where commodities and products of this State may find advantageous markets and secure perfection of arrangements between citizens of this State and producers and consumers in other areas whereby there may be carried on greater interchange of commerce.
(7) Natural Resources Commission:
(a) to select a label, have it copyrighted and registered in the United States copyright office, which label shall in the judgment of the director be used to advertise the chemical and other contents of food products grown in South Carolina or to advertise other articles;
(b) to promulgate and register the conditions upon which such label may be used and fix the charges for such use; and
(c) to promulgate information furnished by the South Carolina Research Laboratories and other educational institutions and such other information as has bearing upon value of South Carolina products.
Section 13-1-360. Confidential information submitted to any agency as required by law shall not be published in any manner which will directly or indirectly reflect or damage the reputation or business activity of any individual or corporation concerned.
Section 13-1-370. The director may, in his discretion establish an advisory committee of the Division of State Development (hereafter, in this section, the `advisory committee') which if established, would be comprised of twenty-four citizens of the State to be appointed by the Governor upon the advice and consent of the Senate. One member must be appointed from each of the following two-county areas:
1. Richland and Kershaw counties;
2. Spartanburg and Cherokee counties;
3. Laurens and Newberry counties;
4. Abbeville and Greenwood counties;
5. Berkeley and Charleston counties;
6. Oconee and Anderson counties;
7. Florence and Marion counties;
8. Greenville and Pickens counties;
9. Horry and Georgetown counties;
10. Union and York counties;
11. Lee and Darlington counties;
12. Marlboro and Dillon counties;
13. Chester and Fairfield counties;
14. Lancaster and Chesterfield counties;
15. Sumter and Calhoun counties;
16. Clarendon and Williamsburg counties;
17. Beaufort and Jasper counties;
18. Dorchester and Colleton counties;
19. Orangeburg and Bamberg counties;
20. Allendale and Hampton counties;
21. Aiken and Barnwell counties;
22. Lexington and Saluda counties;
23. Edgefield and McCormick counties.
The Governor shall appoint one member from the State at large who shall serve as chairman. The terms of the members are for a period of four years and until their successors are appointed and qualify. Terms for all members commence on July first of the year of appointment. Of the members initially appointed from the two-county areas, the Governor shall appoint one member from each of the following counties for a term of two years: Kershaw, Cherokee, Newberry, Greenwood, Charleston, Anderson, Marion, Pickens, Georgetown, York, Darlington, and Dillon, and the Governor shall appoint one member from each of the following counties for a term of four years: Fairfield, Chesterfield, Calhoun, Williamsburg, Jasper, Colleton, Bamberg, Hampton, Barnwell, Lexington, and McCormick. Upon the expiration of the initial terms of the members appointed from the two-county areas, the Governor shall rotate the appointment of these members between the counties in each of the two-county areas. The advisory committee may select other officers from its membership to serve for terms designated by it. Vacancies must be filled in the manner of the original appointments for the unexpired portions of the terms. The members of the advisory committee must be paid the usual mileage and subsistence as is provided by law for members of state boards, commissions, and committees. The advisory committee must meet four times a year, and may meet more often if the chairman considers it necessary or if ten members request the chairman to call a meeting, and the director approves such additional meetings. The advisory committee may not meet at any location outside the boundaries of South Carolina. The advisory committee shall advise and consult with the director on the following matters:
(a) the condition of and prospects for economic development in the State--particularly in the rural areas;
(b) the fostering of a close working relationship between the primarily rural, or primarily agricultural, counties of the State and the counties which are primarily nonrural or nonagricultural;
(c) the identification of problems facing smaller rural counties and of solutions to those problems;
(d) having input to the director regarding industrial prospects throughout the State; and
(e) any other matter which the director considers necessary to assist the director, in the way of consultation or advice, in carrying out any of the director's duties or functions under this article.
Section 13-1-380. (A) Notwithstanding the provisions of Section 13-1-40, there is established within the division a Recycling Market Development Advisory Council to assist in the development of markets for recovered materials and products with recycled content in this State.
(B) The members of the advisory council shall be appointed not later than ninety days after this article is effective.
(C) The advisory council shall consist of fourteen members to be appointed by the Governor to include:
(1) one member shall represent the division;
(2) one member shall represent county governments;
(3) one member shall represent municipalities;
(4) one member shall represent the solid waste collection and disposal industry;
(5) one member shall represent the existing recycling industry;
(6) one member shall represent the glass industry;
(7) one member shall represent the paper industry;
(8) one member shall represent the aluminum industry;
(9) one member shall represent the plastics industry;
(10) one member shall represent the tire industry;
(11) one member shall represent the general public;
(12) one member shall represent the oil industry;
(13) one member shall represent the scrap metal recycling industry; and
(14) one member shall represent higher education research institutions.
(D) Each member of the advisory council shall serve a two-year term beginning on the date of his appointment and shall serve until a successor is appointed and qualified. Members shall serve at the pleasure of their appointing authority and shall receive the usual mileage, per diem, and subsistence provided by law for members of boards, committees, and commissions. Until sufficient funds have accumulated in the Solid Waste Management Trust Fund to cover the advisory council's expenses, the appointing authorities shall provide the mileage, per diem, and subsistence for their respective appointees. Any other expenses of the advisory council shall be shared equally by the appointing authorities until the trust fund has sufficient funds to cover the expenses.
(E) The chairman shall be designated by the Director of the Department of Commerce and the advisory council shall select its own vice-chairman. The advisory council shall adopt operating procedures and shall meet on the call of the chairman or of a majority of the members. Members shall promulgate regulations concerning meeting attendance. A majority of the members shall constitute a quorum to do business. The division shall provide the necessary staff and administrative facilities and services to the advisory council. The Department of Health and Environmental Control shall provide technical assistance to the council at the request of the chairman or of the vice-chairman, or by majority vote of the advisory council.
(F) Not later than fifteen months after this article is effective, the council shall provide to the Governor and to the General Assembly an initial report which shall include, at a minimum, the following:
(1) a description and analysis of this state's existing recycling industry;
(2) an analysis of the projected long-term capacity of existing markets to absorb materials generated by source separation, recovery, or recycling programs;
(3) an analysis of potential markets in this State, in other states, or in foreign countries for recovered materials and products with recycled content from this State;
(4) an analysis of institutional, economic, and technical barriers to the use of recovered materials and products with recycled content;
(5) recommendations for actions which may be taken to increase demand for source separated, recovered, or recycled materials or products;
(6) recommendations for actions which may be taken to increase the incentives for private individuals and for business and industry to consume or export recovered materials and products with recycled content;
(7) an analysis of the compatibility of recycling with solid waste treatment or disposal methods and recommendations on the feasibility of the implementation of mechanisms for cooperative marketing of recyclable materials;
(8) recommendations on categories of materials which should be recovered, given existing and potential markets for such materials;
(9) recommendations for a public education program to be implemented by the Office of Solid Waste Reduction and Recycling within the department to provide information to the public and to business and industry on the benefits of source separation, recovery, and recycling and on the availability of recovered materials or products with recycled content;
(10) a study of methods of and cost effectiveness of source separation and recycling of recovered materials;
(11) a study of packaging reduction; and
(12) a study of the design of products at the primary stage of development to promote recyclability.
(G) Following its initial report, the council shall submit to the Governor and to the General Assembly by the end of each calendar year an annual report on recycling activities in this State which shall, at a minimum, include the following:
(1) any revisions which the council determines are necessary to its initial report;
(2) a description and analysis of the amounts and types of solid waste materials recovered or recycled in this State during the preceding year;
(3) recommendations regarding materials which should be added to or deleted from source separation, recovery, and recycling programs; and
(4) any other recommendations, including tax incentives, to facilitate the development of markets for recovered materials or products in this State."
Division of Savannah Valley Development established
SECTION 245. Chapter 1, Title 13 of the 1976 Code is amended by adding:
"Article 5
Division of Savannah Valley Development
Section 13-1-610. The following terms, when used in this article, shall have the following meanings unless the context clearly requires otherwise:
(1) `Deputy director' means the Deputy Director for the Division of Savannah Valley Development;
(2) `Division' means the Division of Savannah Valley Development; and
(3) `Director' means the Director of the Department of Commerce.
Section 13-1-620. The director has all the rights and powers necessary or convenient to manage the business and affairs of the division and to take action as he considers advisable, necessary, or convenient in carrying out his powers, including, but not limited to, the following rights and powers to:
(a) have perpetual succession;
(b) sue and be sued;
(c) adopt, use, and alter a corporate seal;
(d) adopt and amend bylaws for regulation of the division's affairs consistent with this article;
(e) notwithstanding any provision of law or regulation to the contrary, and in accordance with the division's own procurement procedures and regulations as approved by the Budget and Control Board, acquire, purchase, hold, use, improve, manage, lease, mortgage, pledge, sell, transfer, and dispose of any property, real, personal, or mixed, or any interest in any property, or revenues of the division, including as security for notes, bonds, evidences of indebtedness, or other obligations of the division. Except for the provisions of Sections 11-35-5210 through 11-35-5270, inclusive, in exercising the powers authorized in this article the division is exempt from Title 11, Chapter 35. The director has no power to pledge the credit and the taxing power of the State or any of its political subdivisions;
(f) receive contributions, donations, and payments and to invest and disburse the division's funds;
(g) make inquiry into the status of, and plans for, the development of the J. Strom Thurmond project and the Richard B. Russell project by the United States government, by the State of Georgia, or by any other agency or instrumentality;
(h) encourage, assist, promote, and cooperate in the development of the Savannah River and the streams, canals, or watercourses now or at a later time connected to or flowing into the river and to appear on behalf of the State before any agency, department, or commission of this State, of the United States, or of any other state in furtherance of the development or of any matter connected with the development or related to the development;
(i) negotiate agreements, accords, or compacts on behalf of and in the name of the State with the State of Georgia or the United States, or both, with any agency, department, or commission of either or both, or with any other state or any agency, department, or commission of the other state, relating to the development of the Savannah River and the development of the streams, canals, or watercourses now or at a later time connected to or flowing into the river, and particularly in reference to joint or concurrent action in the furtherance of agreements, accords, or contracts. Interstate compacts made by the division are subject to approval by concurrent resolution of the General Assembly;
(j) act as a regional development agency of the State to receive, purchase, hold title to, and to manage any real property in the division's jurisdiction acquired by release of surplus real property, by purchase, by donation, by lease, or by exchange and to develop and promote the development of the land for recreational, transportation, residential, commercial, and industrial purposes, both public and private, and to lease, sublease, or convey title in fee simple to the real property as provided in the bylaws of the division. The division shall retain, carry forward, or expend any proceeds derived from the sale, lease, rental, or other use of real and personal property under the division's exclusive jurisdiction. The proceeds shall only be used in the development and the promotion of the division as provided by this article and for the purposes authorized by this article;
(k) promulgate regulations governing the use of or doing business on the division's property or facilities, including the adoption of safety standards and insurance coverage or proof of financial responsibility, including, but not limited to, providing for the licensing of persons, firms, or corporations using or doing business on such property or facilities, and for license fees to cover the expense thereof;
(l) borrow money, make and issue notes, bonds, and other evidences of indebtedness, including refunding and advanced refunding notes and bonds, of the division; to secure the payment of the obligations or any part by mortgage, lien, pledge, or deed of trust on any of its property, contracts, franchises, or revenues, including the proceeds of any refunding and advanced refunding notes, bonds, and other evidences of indebtedness and the investments in which proceeds are invested and the earnings on and income from the investments; to invest its monies, including without limitation its revenues and proceeds of the notes, bonds, or other evidences of indebtedness, in obligations of, or obligations the principal of and interest on which are guaranteed by or are fully secured by contracts with, the United States, in obligations of any agency, instrumentality, or corporation which has been or may at a later time be created by or pursuant to an act of the United States Congress as an agency, instrumentality, or corporation, in direct and general obligations of this State, and in certificates of deposit issued by any bank, trust company, or national banking association; to make agreements with the purchasers or holders of the notes, bonds, or other evidences of indebtedness or with others in connection with any notes, bonds, or other evidences of indebtedness, whether issued or to be issued, as the division considers advisable; and to provide for the security for the notes, bonds, or other evidences of indebtedness and the rights of the holders of the notes, bonds, or other evidences of indebtedness. In the exercise of the powers granted in this section to issue advanced refunding notes, bonds, or other evidences of indebtedness the director may, but is not required to, avail himself of or comply with any of the provisions of Chapter 21 of Title 11. The director, when investing in certificates of deposit, shall invest in certificates of deposit issued by institutions authorized to do business in this State if the institutions offer terms which, in the opinion of the director, are equal to or better than those offered by other institutions;
(m) loan the proceeds of notes, bonds, or other evidences of indebtedness to a person, corporation, or partnership to construct, acquire, improve, or expand the projects described in Section 13-1-640;
(n) make contracts, including service contracts with a person, corporation, or partnership, to provide the services provided in Section 13-1-640, and to execute all instruments necessary or convenient for the carrying out of business
(o) for the acquiring of rights-of-way and property necessary for the accomplishment of its duties and purposes, the division may purchase them by negotiation or may condemn them, and should it elect to exercise the right of eminent domain, condemnation actions must be in the name of the division. The power of eminent domain applies to all property of private persons or corporations and also to property already devoted to public use in Abbeville and McCormick counties;
(p) employ and dismiss those employees, consultants, and other providers of services he considers necessary for the division and to fix and to pay their compensation. Employees of the division or an entity established pursuant to Section 13-1-790 are not considered state employees except for eligibility for participation in the State Retirement System and the State Health Insurance Group Plans and pursuant to Chapter 78 of Title 15. The provisions of Chapter 11 of Title 8 and Article 5, Chapter 17 of Title 8 do not apply to the division. The division is responsible for complying with the other state and federal laws covering employers. The division may contract with the Division of Human Resources Management of the State Budget and Control Board to establish a comprehensive human resource management program;
(q) fix, alter, charge, and collect tolls, fees, rents, charges, and assessments for the use of the facilities of or for the services rendered by, the division; these rates must be at least sufficient to provide for payment of all expenses of the division, the conservation, maintenance, and operation of its facilities and properties, the payment of principal and interest on its notes, bonds, and other evidences of indebtedness or obligation, and to fulfill the terms and provisions of any agreements made with the purchasers and holders of these notes, bonds, or other evidences of indebtedness or obligation.
Section 13-1-630. The director may exercise any of the powers and duties conveyed under Section 13-1-620 in the entire area of a county or portion of a county which borders the Savannah River or is within the Savannah River Basin.
Section 13-1-640. In furtherance of its purposes, the division may issue revenue bonds, the interest on which may or may not be excludable from gross income for federal income tax purposes, for the purpose of raising funds needed from time to time for the financing or refinancing, in whole or in part, the acquisition, construction, equipment, maintenance, and operation of a facility, building structure, or any other matter or thing which the division is authorized to acquire, construct, equip, maintain, or operate. In connection with the issuance of bonds, the division may enter into an agreement with a company to construct, operate, maintain, and improve a project, and the division may enter into a financing agreement with the company prescribing the terms and conditions of the payments to be made by the company to the division, or its assignee, to meet the payments that become due on bonds.
Section 13-1-650. Revenue bonds issued under this article for any project described in Section 13-1-640 must be authorized by executive order of the director. The director's executive order may contain provisions which are a part of the contract between the division and the several holders of the bonds as to:
(a) the custody, security, use, expenditure, or application of the proceeds of the bonds;
(b) the acquisition, construction, and completion of any project for which the bonds are issued;
(c) the use, regulation, operation, maintenance, insurance, or disposition of the project for which the bonds are issued, or any restrictions on the exercise of the powers of the division to dispose of or limit or regulate the use of the project;
(d) the payment of the principal of or interest on the bonds and the sources and methods of payment, the rank or priority of any bonds as to any lien or security, or the acceleration of the maturity of any bonds;
(e) the use and disposition of the revenues derived or to be derived from the operation of any project;
(f) the pledging, setting aside, depositing, or entrusting of the revenues from which the bonds are made payable to secure the payment of the principal of and interest on the bonds or the payment of expenses of operation and maintenance of the project;
(g) the setting aside of revenues, reserves, or sinking funds and the source, custody, security, regulation, and disposition of the revenues, reserves, or sinking funds;
(h) the determination of the definition of revenues or of the expenses of operation and maintenance of the project for which the bonds are issued;
(i) the rentals, fees, or other charges derived from the use of the project and the fixing, establishing, collection, and enforcement of the rentals, fees, or other charges, the amount or amounts of revenues to be produced by the rentals, fees, or other charges, and the disposition and application of the amounts charged or collected;
(j) limitations on the issuance of additional bonds or any other obligations or the incurrence of indebtedness payable from the same revenues from which the bonds are payable;
(k) rules to ensure the use of the project by the public or private sector to the maximum extent to which the project is capable of serving the public or private sector;
(l) any other matter or course of conduct which, by recital in the resolution authorizing the bonds, is declared to further secure the payment of the principal of or interest on the bonds.
Section 13-1-660. The bonds may be issued in one or more series, may bear a date, may mature at a time not exceeding forty years from their respective dates, may bear interest at the rate or rates per annum as approved by the State Budget and Control Board, may be payable in a medium of payment and at a place, may be in a denomination, may be in a form, either coupon or registered, may carry registration privileges, may be subject to terms of redemption before maturity, with or without premium, and may contain terms, covenants, and conditions as the executive order authorizing the issuance of the bonds may provide. The interest rate on bonds issued by the division, the proceeds of which are loaned to a company pursuant to a financing agreement to construct or acquire a project authorized under Section 13-1-640, are not subject to approval by the State Budget and Control Board. The bonds are fully negotiable within the meaning of and for the purposes of the Uniform Commercial Code.
Section 13-1-670. The principal of and interest on bonds issued under this article are exempt from taxation, as provided in Section 12-1-60. All security agreements, indentures, and financing agreements made pursuant to the provisions of this article are exempt from state stamp and transfer taxes.
Section 13-1-680. No bonds may be issued pursuant to the provisions of this article until the proposal of the director to issue the bonds receives the approval of the State Budget and Control Board. When the director proposes to issue bonds, he shall file a proposal with the Budget and Control Board setting forth:
(a) a brief description of the project proposed to be undertaken and its anticipated effect upon the economy of the area in which the project is to be located;
(b) a reasonable estimate of the cost of the project;
(c) a general summary of the terms and conditions of any financing agreement and security agreement. Upon the filing of the proposal the Budget and Control Board shall, as soon as practicable, make an independent investigation, as it considers necessary or appropriate, and if it finds that the project is intended to promote the purposes of this article, it may approve the project. At any time following the approval, the division may proceed with the acquisition and financing of the project. If the proceeds of the bonds are to be made available to a company to construct a project, as provided in Section 13-1-440, notice of the approval of any project by the Budget and Control Board must be published at least once by the division in a newspaper having general circulation in the county where the project is to be located. Any interested party may, within twenty days after the date of the publication of notice, but not after the twenty days, challenge the validity of the approval in the court of common pleas in the county where the project is to be located.
Section 13-1-690. The bonds must be signed in the name of the director by the manual or facsimile signature of the director. Interest coupons attached to the bonds must be signed by the facsimile signature of the director. The bonds may be issued notwithstanding that the director signing them or whose facsimile signature appears on the bonds or the coupons has ceased to hold office at the time of issue or at the time of the delivery of the bonds to the purchaser.
Section 13-1-700. The bonds must be sold at public or private sale upon terms and conditions as the State Budget and Control Board considers advisable.
Section 13-1-710. The deputy director shall file with the State Treasurer within thirty days from the date of their issuance a complete description of all obligations entered into by the division with the rates of interest, maturity dates, annual payments, and all pertinent data.
Section 13-1-720. All provisions of an executive order authorizing the issuance of the bonds in accordance with this article and any covenants and agreements constitute legally binding contracts between the division and the several holders of the bonds, regardless of the time of issuance of the bonds, and are enforceable by any holder by mandamus or other appropriate action, suit, or proceeding at law or in equity in any court of competent jurisdiction.
Section 13-1-730. The bonds authorized by the article are limited obligations of the division. The principal and interest are payable solely out of the revenues derived by the division, including any revenues that may be derived by the division pursuant to the financing agreement with respect to the project which the bonds are issued to finance. The bonds are an indebtedness payable solely from a revenue producing source or from a special source which does not include revenues from any tax or license. The bonds do not constitute nor give rise to a pecuniary liability of the division, the department, the State, or any political subdivision of the State, or to a charge against the general credit of the division, the department, the State, or any political subdivision of the State or taxing powers of the State, or any political subdivision of the State, and this fact must be plainly stated on the face of each bond. The principal of and interest on any bonds issued under this article must be secured by a pledge of the revenues from which the bonds are payable, may be secured by a security agreement, including a mortgage or any property given as security pursuant to a financing agreement, and may be additionally secured by a pledge of the financing agreement with respect to the project. In making any agreements or provisions, the division does not have the power to obligate itself or the department with respect to any project for which the proceeds of bonds issued under this article have been loaned to a company, except with respect to the project and the application of the revenues from the financing agreement, and does not have the power to incur a pecuniary liability or a charge upon its general credit or upon the general credit of the department. The trustee under any security agreement or indenture, or any depository specified by the security agreement or indenture, may be any person or corporation as the division designates, notwithstanding that the trustee may be a nonresident of this State or incorporated under the laws of the United States or the laws of other states.
Section 13-1-740. All funds of the division must be invested by the State Treasurer and, upon approval and designation by the State Treasurer of a financial institution or institutions, all funds must be deposited in such institutions by the division in accordance with policies established by the director. Funds of the division must be paid out only upon warrants issued in accordance with policies established by the director. No warrants may be drawn or issued disbursing any of the funds of the division except for a purpose authorized by this article. The net earnings of the division, beyond that necessary for retirement of its bonds or other obligations or to implement the purposes of this article, may not inure to the benefit of any person other than the division. Upon termination of the existence of the division, title to all property, real and personal, owned by it, including net earnings, vests in the State.
Section 13-1-750. The division shall retain unexpended funds at the close of the fiscal year of the State regardless of the source of the funds and expend the funds in subsequent fiscal years.
Section 13-1-760. (A) Prior to undertaking any project authorized by Section 13-1-640, the director shall make a determination:
(1) that the project will serve the purposes of this article;
(2) that the project is anticipated to benefit the general public welfare of the locality by providing services, employment, recreation, or other public benefits not otherwise provided locally;
(3) that the project will give rise to no pecuniary liability of the division, the department, the State, or any political subdivision of the State, or charge against the general credit of the division, the department, the State, or any political subdivision of the State, or taxing power of the State or any political subdivision of the State if the proceeds are loaned by the division to a company to construct a project;
(4) as to the amount of bonds required to finance the project;
(5) as to the amount necessary in each year to pay the principal of and the interest on the bonds proposed to be issued to finance the project;
(6) as to the amount necessary to be paid each year into any reserve funds which the director may consider advisable to establish in connection with the retirement of the proposed bonds and the maintenance of the project. The determinations of the director must be set forth in the proceedings under which the proposed bonds are to be issued.
(B) Every financing agreement between the division and a company with respect to a project shall contain an agreement obligating the company to complete the project if the proceeds of the bonds prove insufficient, and obligating the company to pay an amount under the terms of a financing agreement, which, upon the basis of the determinations made by the director, is sufficient:
(1) to pay the principal of and interest on the bonds issued to finance the project;
(2) to build up and maintain any reserves considered by the director to be advisable in connection with the project;
(3) to pay the costs of maintaining the project in good repair and keeping it properly insured, unless the financing agreement obligates the company to pay for the maintenance and insurance of the project.
Section 13-1-770. The proceeds from the sale of any bonds issued under division of this article may be applied only for the purpose for which the bonds were issued, except any premium and accrued interest received in any sale must be applied to the payment of the principal of or the interest on the bonds sold, and if for any reason any portion of the proceeds are not needed for the purpose for which the bonds were issued, that portion of the proceeds must be applied to the payment of the principal of or the interest on the bonds. The cost of acquiring any project includes the following:
(a) the actual cost of the construction of any part of a project, including architects', engineers', and attorneys' fees;
(b) the purchase price of any part of a project that may be acquired by purchase;
(c) all expenses in connection with the authorization, sale, and issuance of the bonds to finance the acquisition;
(d) the interest on the bonds for a reasonable time prior to construction and for not exceeding one year after completion of the construction.
Section 13-1-780. The regulations of the division must be promulgated in accordance with Chapter 23 of Title 1.
Section 13-1-790. The director may establish profit or not-for-profit corporations as he considers necessary to carry out the purposes of this article. Officials or employees of the division may act as officials or employees of the corporations created pursuant to this section without additional compensation. A corporation created pursuant to this section is considered a `public procurement unit' for purposes of Article 19, Chapter 35 of Title 11. The division may make grants or loans to, or make guarantees for, the benefit of a not-for-profit corporation which the division has caused to be formed whose articles of incorporation require that its directors be elected by members of the division and all assets of which, upon dissolution, must be distributed to the division if it is in existence or, if it is not in existence, then to this State. These grants, loans, or guarantees may be made upon a determination by the division that the receiving not-for-profit corporation is able to carry out the purposes of this article and on the terms and conditions imposed by the division. A guarantee made by the division does not create an obligation of the State or its political subdivisions and is not a grant or loan of the credit of the State or a political subdivision. A guarantee issued by the division must be a special obligation of the division. Neither this State nor any political subdivision is liable on a guarantee nor may they be payable out of any funds other than those of the division and a guarantee issued by the division must contain on its face a statement to that effect.
Section 13-1-800. The property of the division is not subject to any taxes or assessments, but the division shall negotiate a payment in lieu of taxes with the appropriate taxing authorities.
Section 13-1-810. Notwithstanding any provision of law or regulation, the division continues to be an `agency' for purposes of Chapter 78 of Title 15; however, the division is not considered to be an `agency' or `state agency' or any other form of state institution for purposes of Sections 2-7-65 and 2-57-60."
Division of Aeronautics
SECTION 246. Chapter 1, Title 13 of the 1976 Code is amended by adding:
"Article 7
Division of Aeronautics
Section 13-1-1110. The organization and objectives of the division are stated in Chapters 1 through 9 of Title 55."
Division of Public Railways established
SECTION 247. Chapter 1, Title 13 of the 1976 Code is amended by adding:
"Article 9
Division of Public Railways
Section 13-1-1310. There is created a Division of Public Railways within the Department of Commerce which must be governed by the Director of the Department of Commerce. The accounting and personnel procedures of the division shall be maintained so that the division is a lump sum division of the department.
Section 13-1-1320. For the purposes of this article, the following words and terms are defined as follows:
(1) `Division', unless otherwise indicated, means the Division of Public Railways within the Department of Commerce.
(2) `Director', unless otherwise indicated, means the executive and administrative head of the Department of Commerce or his designee.
(3) `Deputy director or designee' means the person or persons appointed by the director, serving at his will and pleasure as his designee, to supervise and carry out the functions and duties of the Public Railways Division as provided for by law.
Section 13-1-1330. The director shall have the following powers and duties in regard to the Division of Public Railways:
(1) the power of a body corporate, including the power to sue and be sued, to make contracts and to adopt and use a common seal and alter it as may be deemed expedient;
(2) to acquire by purchase or donation and to own, rent, lease, mortgage, and dispose of such property, real or personal, as he may deem proper to carry out the purposes and provisions of this article, all or any of them;
(3) to operate, maintain, and control the tracks and equipment transferred to the division by the South Carolina State Ports Authority, or any other person, and be governed by rules and regulations of the Interstate Commerce Commission by virtue of the Class 2 Certificate issued to the Ports Commission and the Port Terminal Railroad of South Carolina;
(4) to acquire, construct, maintain, equip and operate connecting, switching, terminal or other railroads. The term `railroad' as used in this article shall include, but not be limited to, tracks, spurs, switches, terminal, terminal facilities, road beds, rights-of-way, bridges, stations, railroad cars, locomotives, or other vehicles constructed for operation over railroad tracks, crossing signs, lights, signals, storage, administration and repair buildings, and all structures and equipment which are necessary for the operation of the railroad;
(5) to exercise the power of eminent domain by and in the name of the division. The division also may acquire the rights-of-way of abandoned railroads or railroads proposed for abandonment by gift or purchase;
(6) to employ and dismiss at pleasure the employees of the division and to fix and to pay the compensation thereof;
(7) to issue revenue bonds, including notes, bonds, refunding bonds and other obligations authorized to be issued by this article, to defray the cost of acquisition, by purchase, construction or condemnation, of connecting, switching, terminal or other railroads, and necessary equipment, payable both as to principal and interest from the revenues to be derived from the operation of such railroads; provided, that all revenue bonds issued by the division shall be issued in accordance with the provisions of Sections 13-1-1350 through 13-1-1460.
(8) to do all things necessary and required to accomplish the purposes of this article.
Section 13-1-1340. The South Carolina State Ports Authority shall, as soon as practicable, transfer to the division its common carrier Class 2 switching railroad operations that are currently under the jurisdiction of the Interstate Commerce Commission.
This transfer includes tracks, yards, equipment, trackage rights, franchises, licenses, leases, agreements, and labor contracts connected with the above railroad operations. Tracks comprise approximately seventeen miles of main yard and line tracks as reported in the latest annual report to the Interstate Commerce Commission. Tracks do not include railroad sidings serving a single user.
Section 13-1-1350. In addition to the powers and duties of the director as specified by Section 13-1-1330, when it shall appear that the acquisition, by purchase, construction, condemnation or donation, and operation of additional connecting, switching, terminal or other railroads are desirable in the public interest to promote and foster economic growth and development, the director may, with the approval of the State Budget and Control Board, extend the division's operations, provided, that if such extension includes extension of mainline trackage, the common carrier railroads operating in the State shall have declined to agree to provide such facilities within six months after having been requested to do so by the division and the Budget and Control Board and provided the financing for such extensions is approved by the Budget and Control Board pursuant to the provisions of this article.
Section 13-1-1360. All bonds issued by the director under authority of this article shall be limited obligations of the division, the principal of and interest on which shall be payable solely out of the revenues derived from the operation of the railroads authorized by this article which the bonds are issued to finance. Bonds and interest coupons issued under authority of this article shall not constitute an indebtedness of the division or department, the State of South Carolina, or any political subdivision thereof, within the meaning of any state constitutional provision or statutory limitation and shall not constitute nor give rise to a pecuniary liability of the same or a charge against the general credit of the division or the department or against the full faith, credit or taxing power of the State of South Carolina, or a political subdivision thereof, and such fact shall be plainly stated on the face of each bond. Such bonds may be executed and delivered at any time as a single issue or from time to time as several issues, may be in such form and denominations, may be of such tenor, may be in registered or bearer form either as to principal or interest or both, may be payable in such installments and at such time or times not exceeding forty years from their date, may be subject to such terms of redemption, may be payable at such place or places, may bear interest at such rate or rates payable at such place or places and evidenced in such manner, and may contain such provisions not inconsistent herewith, all of which shall be provided in the proceedings of the commission authorizing the bonds. Any bonds issued under the authority of this article may be sold at public or private sale at such price and in such manner and from time to time as may be determined by the director to be most advantageous, and the division may pay, as a part of the cost of acquiring any railroad and necessary equipment, and out of the bond proceeds, all expenses, premiums and commissions which the director may deem necessary or advantageous in connection with the authorization, sale and issuance thereof. All bonds issued under the authority of this article except registered bonds, registered otherwise than to bearer and all interest coupons appurtenant thereto shall be construed to be negotiable instruments, despite the fact that they are payable solely from a specified source. The proceedings authorizing the issuance of bonds may provide for the issuance, in the future, of further bonds on a parity with those initially issued, but such proceedings shall preclude the issuance of bonds or any obligations of any sort secured by a lien prior to the lien of the bonds or bonds afterwards issued on a parity with the bonds.
Pending the issuance of bonds, bond anticipation notes may be issued, and to the end that a vehicle be provided therefor, the provisions of Sections 11-17-10 to 11-17-110, as now or hereafter amended, shall be applicable to such bond anticipatory borrowing.
Section 13-1-1370. The principal of and interest on any bonds issued under the authority of this article shall be secured by a pledge of the revenues from which such bonds shall be payable, may be secured by a trust indenture covering all or any part of the railroad and necessary equipment from which the revenues so pledged are derived. The proceedings under which such bonds are authorized to be issued or any such trust indenture may contain any agreements and provisions customarily contained in instruments securing bonds, including, without limiting the generality of the foregoing, provisions respecting the fixing and collection of revenues for any railroad covered by such proceedings or trust indenture, the maintenance and insurance of the railroad and necessary equipment, the creation and maintenance of special funds from the revenues of the railroad, and the rights and remedies available in the event of default to the bondholders or to the trustee under trust indenture, all as the director shall deem advisable and as shall not be in conflict with the provisions of this article; provided, however, that in making any such agreements or provisions, the division shall not have the power to obligate itself except with respect to the railroad and necessary equipment and the application of the revenues therefrom, and shall not have the power to incur a pecuniary liability or a charge upon its general credit or against the full faith, credit or taxing power of the State of South Carolina or any political subdivision thereof. The proceedings authorizing any bonds hereunder and any trust indenture securing such bonds may provide that, in the event of default in payment of the principal of or the interest on such bonds or in the performance of any agreement contained in such proceedings or trust indenture, such payment and performance may be enforced by mandamus or by the appointment of a receiver in equity with power to charge and collect revenues and to apply the revenues from the railroad in accordance with such proceedings or the provisions of such trust indenture. Any such trust indenture may provide also that in the event of default in payment or the violation of any agreement contained in the trust indenture, it may be foreclosed by proceedings at law or in equity, and may provide that any trustee under the trust indenture or the holder of any of the bonds secured thereby may become the purchaser at any foreclosure sale, if he is the highest bidder. No breach of any such agreement shall impose any pecuniary liability upon the division or department or any charge upon its general credit or against the full faith, credit or taxing power of the State of South Carolina, or any political subdivision thereof.
The trustee or trustees under any trust indenture, or any depository specified by such trust indenture, may be such persons or corporations as the director shall designate, notwithstanding that they may be nonresidents of South Carolina or incorporated under the laws of the United States or the laws of other states of the United States.
Section 13-1-1380. Contracts for the construction of any railroad, or the purchase of any necessary equipment, may be let on such terms and under such conditions as the director shall prescribe and may be let with or without advertisement or call for bids therefor.
Provided, however, that after the acquisition by construction of the railroad has been completed and the railroad has been placed into service the provisions of Section 1-1-440 shall apply.
Section 13-1-1390. Prior to undertaking the acquisition of any railroad and necessary equipment, the director shall find: that the acquisition of the railroad and necessary equipment is desirable in the public interest to promote and foster economic growth and development; that the common carrier railroads operating in the State shall have declined to agree to provide such railroad and necessary equipment within six months after having been requested to do so by the division and the Budget and Control Board; that the acquisition of the railroad and necessary equipment will give rise to no pecuniary liability of the division or a charge against its general credit or a charge against the full faith, credit or taxing power of the State of South Carolina or any political subdivision thereof; the amount of bonds required to finance the acquisition of the railroad and necessary equipment; the amount necessary in each year to pay the principal and interest on the bonds proposed to be issued to finance the acquisition of the railroad and necessary equipment; the amount necessary to be paid each year into any reserve funds which the director may deem it advisable to establish in connection with the retirement of the proposed bonds and the operation and maintenance of the railroad and necessary equipment; the estimated cost of maintaining the railroad and necessary equipment in good repair and keeping them properly insured. The determinations and findings of the director required to be made above shall be set forth in the proceedings under which the proposed bonds are to be issued, and the director shall certify in writing such determinations and findings to the Budget and Control Board before the issuance of such bonds.
Section 13-1-1400. The director shall have the power to provide that the bond proceeds shall be disbursed by the trustee bank or banks during construction upon the estimate, order or certificate of the designated construction engineer and the authorized representative of the division. In making such agreements or provisions the director shall not have the power to obligate the division except with respect to the railroad and necessary equipment and the application of the revenues therefrom, and shall not have the power to incur a pecuniary liability or a charge upon the general credit of the division or against the full faith, credit or taxing power of the State of South Carolina or a political subdivision thereof.
Section 13-1-1410. The books and financial records of any additional acquisition authorized under this article by the director shall be kept separate and apart from the presently existing books and records of the division.
Section 13-1-1420. The proceeds from the sale of any bonds issued under authority of this article shall be applied only for the purpose for which the bonds were issued; provided, however, that any premium and accrued interest received in any such sale shall be applied to the payment of the principal of or the interest on the bonds sold; and provided, further, that if for any reason any portion of the proceeds shall not be needed for the purpose for which the bonds were issued, such unneeded portion of the proceeds shall be applied to the payment of the principal of or the interest on the bonds. The cost of acquiring any railroad or necessary equipment shall be deemed to include the following: the actual cost of the construction of any part of the railroad which may be constructed, including architects' and engineers' fees; the purchase price of any part of railroad or necessary equipment that may be acquired by purchase; all expenses in connection with the authorization, sale and issuance of the bonds to finance such acquisition; and the interest on the bonds for a reasonable time prior to construction, during construction and for not exceeding one year after completion of the construction.
Section 13-1-1430. Any bonds issued hereunder and at any time outstanding may at any time and from time to time be refunded by the director, but only with the approval of the State Budget and Control Board being first obtained, by the issuance of its refunding bonds in such amount as the director may deem necessary but not exceeding an amount sufficient to refund the principal of the bonds to be refunded, together with any unpaid interest thereon and any premiums, expenses and commissions necessary to be paid in connection therewith. Any such refunding may be effected whether the bonds to be refunded have matured or shall thereafter mature, either by sale of the refunding bonds and the application of the proceeds for the payment of the bonds to be refunded, or by exchange of the refunding bonds for the bonds to be refunded thereby; provided, that the holders of any bonds to be refunded shall not be compelled without their consent to surrender their bonds for payment or exchange prior to the date on which they are payable, or, if they are called for redemption prior to the date on which they are by their terms subject to redemption. All refunding bonds issued under the authority of this article shall be payable in the same manner and under the same terms and conditions as are herein granted for the issuance of bonds. In addition to the powers herein granted for the issuance of refunding bonds the director may avail himself of the provisions of Sections 11-21-10 to 11-21-80, (the Advanced Refunding Act).
Section 13-1-1440. It shall be lawful for all executors, administrators, guardians, committees and other fiduciaries to invest any moneys in their hands in bonds issued under the provisions of this article.
Section 13-1-1450. The bonds authorized by this article and the income therefrom, all trust indentures executed as security therefor, and all railroads and necessary equipment so long as owned by the division and the revenue derived therefrom shall be exempt from all taxation in the State of South Carolina except for inheritance, estate or transfer taxes; and all trust indentures made pursuant to the provisions of this article shall be exempt from South Carolina stamp and transfer taxes.
Section 13-1-1460. No bonds shall be issued pursuant to the provisions of this article until the proposal of the director to issue the bonds shall receive the approval of the State Budget and Control Board. Whenever the director shall propose to issue bonds pursuant to the provisions of this article, he shall file a petition with the State Budget and Control Board setting forth:
(a) a brief description of the railroad and necessary equipment proposed to be acquired and its anticipated effect upon the economy of the area in which the railroad is to be located and of the areas adjacent thereto;
(b) a reasonable estimate of the cost of the acquisition of the railroad and necessary equipment; and
(c) a general summary of the terms and conditions of the trust indenture.
Upon the filing of the petition the State Budget and Control Board shall, as soon as practicable, make such independent investigation as it deems advisable, and if it finds that the acquisition of the railroad and necessary equipment is intended to promote the purposes of this article and is reasonably anticipated to effect such result, it shall be authorized to approve the acquisition of the railroad and necessary equipment and at any time following such approval, the director may proceed with the acquisition and financing of the railroad and necessary equipment. Notice of the approval of the acquisition of the railroad and necessary equipment by the State Budget and Control Board shall be published at least once a week for three consecutive weeks by the State Budget and Control Board in a newspaper having general circulation in the State and the county where the railroad is to be located.
Any interested party may, within twenty days after the date of the publication of such notice, but not afterwards, challenge the validity of such approval by action de novo in the court of common pleas in any county where the railroad is to be located.
Section 13-1-1470. The authorization herein granted may be carried out by the director without publication, notwithstanding any restriction, limitation, or other procedure imposed upon the director by any other statute.
Section 13-1-1480. In accordance with the requirements of Title 49, United States Code, Section 10102(17), and other provisions of federal laws governing the operation of common carrier railroads, unless such requirements or any part of them are waived by the Interstate Commerce Commission pursuant to Section 10505 of the Interstate Commerce Act (49 U.S. Code Section 10505), the division shall hold title to, disburse and account for assets and revenues received by it from whatever source. All such funds shall be on deposit with and maintained in separate accounts by the State Treasurer."
Advisory Coordinating Council for Economic Development established
SECTION 248. Chapter 1, Title 13 of the 1976 Code is amended by adding:
"Article 11
Advisory Coordinating Council
for Economic Development
Section 13-1-1710. There is hereby created the Advisory Coordinating Council for Economic Development. The membership shall consist of the Director of the Department of Commerce, the Commissioner of Agriculture, the Chairman of the South Carolina Employment Security Commission, the Director of the South Carolina Department of Parks, Recreation and Tourism, the Chairman of the State Board for Technical and Comprehensive Education, the Chairman of the South Carolina Ports Authority, the Chairman of the South Carolina Public Service Authority, the Chairman of the South Carolina Jobs Economic Development Authority, the Chairman of the South Carolina Department of Revenue and Taxation, and the Chairman of the Small and Minority Business Expansion Council. The Director of the Department of Commerce shall serve as the chairman of the advisory coordinating council.
Section 13-1-1720. (A) The advisory coordinating council shall meet at least quarterly. It shall enhance the economic growth and development of the State through strategic planning and coordinating activities which must include:
(1) development and revision of a strategic state plan for economic development. `Strategic state plan for economic development' means a planning document that outlines strategies and activities designed to continue, diversify, or expand the economic base of South Carolina, based on the natural, physical, social, and economic needs of the State;
(2) monitoring implementation of a strategic plan for economic development through an annual review of economic development activities or the previous year and modifying the plan as necessary;
(3) coordination of economic development activities of member agencies of the advisory coordinating council and its advisory committees;
(4) use of federal funds, foundation grants, and private funds in the development, implementation, revision, and promotion of a strategic plan for economic development;
(5) evaluation of plans and programs in terms of their compatibility with state objectives and priorities as outlined in the strategic plan for economic development.
(B) The advisory coordinating council may not engage in the delivery of services.
Section 13-1-1730. The advisory coordinating council shall make reports to the Governor, the chairmen of the Senate Finance and House Ways and Means Committees, and the General Assembly at least annually in the Department of Commerce's annual report on the status and progress of economic development goals which have been set for the State as a part of the ongoing planning process and on the commitments, expenditures, and balance of the Economic Development Account, with appropriate recommendations.
Section 13-1-1740. (A) The advisory coordinating council shall make recommendations to the Governor, the General Assembly, and the State Budget and Control Board as to the policies and programs involved in the state's economic development it considers necessary to carry out the objectives of the strategic plan.
(B) The advisory coordinating council shall review agency requests for legislative appropriations for economic development and may make recommendations to the Budget and Control Board and the General Assembly concerning requests compatible with the objectives of the strategic plan. Nothing in this section limits an agency's direct access to the General Assembly, and comment by the advisory coordinating council is not a part of the budget process.
Section 13-1-1750. Funds for technical, administrative, and clerical assistance and other expenses of the advisory coordinating council must be provided by the member agencies. The advisory coordinating council may establish technical advisory committees in order to assist in the development of a strategic plan for economic development. The advisory coordinating council shall seek to utilize data relevant to the economic growth and development of the State which is available from the Department of Transportation, the University of South Carolina, Clemson University, and other state agencies and organizations.
Section 13-1-1760. If any provision of Sections 13-1-1710 through 13-1-1760 is in conflict with any existing provisions of law pertaining to the member agencies of the advisory coordinating council, notwithstanding the fact that the provisions of law contained in Sections 13-1-1710 through 13-1-1760 have a later effective date, the prior provision controls. Neither Sections 13-1-1710 through 13-1-1760 nor the advisory coordinating council shall infringe upon nor diminish the self-governing autonomy of the agencies involved."
Agreements authorized
SECTION 249. Title 13 of the 1976 Code is amended by adding:
"CHAPTER 2
Authority to Agree-
Governing Board Membership
Section 13-2-10. Notwithstanding any other provision of law, the South Carolina Department of Social Services and the South Carolina Department of Health and Environmental Control, or any other state agency, are hereby authorized to enter into written agreements with any other state agency or interagency council, whether created by statute or executive order, to ensure that the purposes and function of comprehensive development programs can be more effectively and efficiently implemented.
Provided, however, that no agency shall commit any funds by contract unless previously appropriated by the General Assembly. Provided, that any state agency which is created by executive order, and exercising the provisions of this section, shall contain at least four members of the legislature on its governing board, two of whom shall be selected from the membership of the Senate by the President of that body and two of whom shall be selected from the membership of the House of Representatives by the Speaker of that body."
Name changed
SECTION 250. Section 13-7-20 of the 1976 Code is amended to read:
"Section 13-7-20. The Division of State Development of the Department of Commerce, hereinafter in this section referred to as the division, is hereby designated as the agency of the State which shall be responsible for the promotion and development of atomic energy resources in South Carolina.
In accordance with the laws of this State, the division shall employ, compensate, and direct the activities of such individuals as may be necessary to carry out the provisions of this article. The division shall have the following powers and duties in the promotion and development of atomic energy industries, and resources, in addition to its other duties as imposed by law:
(1) Promote and assist in the establishment of private atomic energy facilities such as nuclear fuel manufacturing, fabrication, and reprocessing plants; radioisotope facilities; waste-disposal sites; test-reactor sites; transportation facilities; and others which are necessary or desirable for the promotion and development of atomic energy resources within the State.
(2) Assist the Governor, the General Assembly, and other agencies of state government in the development and promotion of atomic energy resources and industrial activities.
(3) Coordinate the atomic energy industrial development activities of the State, recognizing the regulatory authority of the State Department of Health and the duties of other departments of state government.
(4) Maintain a close liaison with the industrial community, the federal government, the governments of other states, and regional bodies concerned with the promotion and development of industrial activity in the field of atomic energy.
(5) Cooperate with institutions of higher learning in order to take full advantage of all research activities which will support atomic energy development and industrial activities.
(6) Accept and administer loans, grants, and other funds or gifts, conditional or otherwise, in the furtherance of its promotion and development functions, from the federal government and other sources, public or private."
Name changed
SECTION 251. Section 13-7-70(4) of the 1976 Code is amended to read:
"(4) The appropriate state agency shall enter into agreements with the respective federal agencies designed to avoid duplication of effort or conflict in enforcement and inspection activities so that:
(a) Rules and regulations adopted by the department pursuant to this section may be enforced, within their respective jurisdiction, by any authorized representative of the department, the Department of Public Safety, and the Department of Transportation, and the Public Service Commission, according to mutual understandings between such bodies of their respective responsibilities and authority.
(b) The department, through any authorized representative, may inspect records of persons engaged in the transportation of radioactive materials, during the hours of business operation where such records reasonably relate to the method or contents of packing, marking, loading, handling of radioactive materials in transport within the State.
(c) The department, through any authorized representative, may enter upon and inspect the premises or vehicles of any person engaged in the transportation of radioactive materials during hours of business operation, with or without a warrant, for the purpose of determining compliance with the provisions of this article and the rules and regulations thereunder.
(d) Upon finding by the department that any provision of this section or the rules and regulations hereunder are being violated, or that any practice in the transportation of radioactive materials constitutes a clear and imminent danger to the public health and safety, it may issue an order requiring correction."
Name changed
SECTION 252. Item C. of Section 13-7-160 of the 1976 Code is amended to read:
"C. Rules and regulations adopted by the department pursuant to this section may be enforced, within their respective jurisdiction, by any authorized representative of the department, the Department of Public Safety and the Public Service Commission, according to mutual understandings between such bodies of their respective responsibilities and authority."
Name changed
SECTION 253A. Section 13-11-20 of the 1976 Code is amended to read:
"Section 13-11-20. Members of the board shall be appointed by the Governor as follows: Two members upon nomination of the Director of the South Carolina Department of Parks, Recreation and Tourism; one member upon nomination of the South Carolina Land Resources Conservation Commission; two members upon nomination of the Director of the Department of Commerce or his designee; one member upon nomination of the Fairfield County Council; one member upon nomination of the Fairfield County Development Board; and one member appointed by the Governor, who shall be the chairman. In addition, the Director of the South Carolina Department of Parks, Recreation and Tourism, the Director of the Department of Commerce or his designee, the Executive Director of the State Housing Authority, the Executive Director of the Central Midlands Regional Planning Council, the Transportation Commissioner representing Fairfield County, the Mayor of the city of Winnsboro, the member of the House of Representatives from District No. 41 and any Senators from Senatorial District No. 7 who are residents of Fairfield County, and the Executive Director of the South Carolina Department of Archives and History shall serve as ex officio members of the board. Terms of office of the appointed members shall be five years and until their successors are appointed and qualified. Vacancies shall be filled in the manner of original appointment for the unexpired term."
Name changed
SECTION 253B. Section 13-11-20 of the 1976 Code is amended to read:
"Section 13-11-20. Members of the board shall be appointed by the Governor as follows: two members upon nomination of the Director of the South Carolina Department of Parks, Recreation and Tourism; one member upon nomination of the Department of Natural Resources; two members upon nomination of the Director of the Department of Commerce or his designee; one member upon nomination of the Fairfield County Council; one member upon nomination of the Fairfield County Development Board; and one member appointed by the Governor, who shall be the chairman. In addition, the Director of the South Carolina Department of Parks, Recreation and Tourism, the Director of the Department of Commerce or his designee, the Executive Director of the State Housing Authority, the Executive Director of the Central Midlands Regional Planning Council, the Transportation Commissioner representing Fairfield County, the Mayor of the city of Winnsboro, the member of the House of Representatives from District No. 41 and any Senators from Senatorial District No. 7 who are residents of Fairfield County, and the Executive Director of the South Carolina Department of Archives and History shall serve as ex officio members of the board. Terms of office of the appointed members shall be five years and until their successors are appointed and qualified. Vacancies shall be filled in the manner of original appointment for the unexpired term."
Name changed
SECTION 254. Section 13-11-80 of the 1976 Code is amended to read:
"Section 13-11-80. For the acquiring of rights-of-way and property necessary for the accomplishment of the duties and purposes of the New Horizons Development Authority, all or any of such purposes, the authority may purchase them by negotiation or may condemn them, and should it elect to exercise the right of eminent domain, condemnation proceedings shall be maintained by and in the name of the authority, and it may proceed in the manner provided by the laws of the State for procedure by any county, municipality or authority organized under the laws of this State, by the Department of Transportation, by railroad corporations or in any other manner provided by law as the authority may in its discretion elect. The power of eminent domain shall apply not only as to all property of private persons or corporations but also as to property already devoted to public use within the area of jurisdiction of the authority."
Reference revised
SECTION 255. Section 13-19-160 of the 1976 Code, is amended to read:
"Section 13-19-160. (A) Prior to undertaking any project authorized by Section 13-19-40, the board of the authority shall make a determination:
(1) that the project will serve the purposes of this chapter;
(2) that the project is anticipated to benefit the general public welfare of the locality by providing services, employment, recreation, or other public benefits not otherwise provided locally;
(3) that the project will give rise to no pecuniary liability of the authority, the State, or any political subdivision of the State, or charge against the general credit of the authority, the State, or any political subdivision of the State, or taxing power of the State or any political subdivision of the State if the proceeds are loaned by the authority to a company to construct a project;
(4) as to the amount of bonds required to finance the project;
(5) as to the amount necessary in each year to pay the principal of and the interest on the bonds proposed to be issued to finance the project;
(6) as to the amount necessary to be paid each year into any reserve funds which the board may consider advisable to establish in connection with the retirement of the proposed bonds and the maintenance of the project. The determinations of the board must be set forth in the proceedings under which the proposed bonds are to be issued.
(B) Every financing agreement between the authority and a company with respect to a project shall contain an agreement obligating the company to complete the project if the proceeds of the bonds prove insufficient, and obligating the company to pay an amount under the terms of a financing agreement, which, upon the basis of the determinations made by the board, is sufficient:
(1) to pay the principal of and interest on the bonds issued to finance the project;
(2) to build up and maintain any reserves considered by the board to be advisable in connection with the project;
(3) to pay the costs of maintaining the project in good repair and keeping it properly insured, unless the financing agreement obligates the company to pay for the maintenance and insurance of the project."
Name change
SECTION 256. Section 14-7-130 of the 1976 Code is amended to read:
"Section 14-7-130. In November of every year, the Department of Revenue and Taxation shall furnish the State Election Commission a computer tape of the name, address, date of birth, social security number, sex, and race of persons who are over the age of eighteen years and citizens of the United States residing in each county who hold a valid South Carolina driver's license or an identification card issued pursuant to Section 57-3-910. In December of every year, the State Election Commission shall furnish a jury list to county jury commissioners consisting of a tape or list derived by merging the list of registered voters in the county with county residents appearing on the tape furnished by the department, but only those licensed drivers and identification cardholders who are eligible to register to vote may be included in the list. Prior to furnishing the list, the commission shall make every effort to eliminate duplicate names and names of persons disqualified from registering to vote or voting pursuant to the laws and Constitution of this State. As furnished to the jury commissioners by the State Election Commission, the list or tape constitutes the roll of eligible jurors in the county. Expenses of the Department of Revenue and Taxation and State Election Commission in implementing this section must be borne by these agencies."
Name change
SECTION 257. Section 14-23-1140 of the 1976 Code is amended to read:
"Section 14-23-1140. The Supreme Court shall have the power by rule to regulate the practice, procedure, and conduct of business in the courts of probate. Provided, however, that the State Department of Mental Health and the State Department of Disabilities and Special Needs may by rule and regulation prescribe the form of admission documents to their facilities."
Name change
SECTION 258. Section 15-9-210(b) of the 1976 Code is amended to read:
"(b) If the corporation has no registered agent, or the agent cannot be served with reasonable diligence, the corporation may be served by registered or certified mail, return receipt requested, addressed to the office of the secretary of the corporation at its principal office. Service is perfected under this subsection at the earliest of:
(1) the date the corporation receives the mail;
(2) the date shown on the return receipt, if signed on behalf of the corporation; or
(3) five days after its deposit in the United States mail, as evidenced by the postmark, if mailed postpaid and correctly addressed to the address of the company's principal office which is listed on the last filed annual report of the company or, if none has been filed, the address of the principal office specified in the initial annual report of the corporation filed with the South Carolina Department of Revenue and Taxation."
References revised
SECTION 259. Section 15-9-270 of the 1976 Code is amended to read:
"Section 15-9-270. The summons and any other legal process in any action or proceeding against it must be served on an insurance company as defined in Section 38-1-20, including fraternal benefit associations, by delivering two copies of the summons or any other legal process to the Director of the Department of Insurance, as attorney of the company with a fee of ten dollars, of which five dollars must be retained by the director to offset the costs he incurs in service of process and of which five dollars must be deposited to the credit of the general fund of the State. A company shall appoint the director as its attorney pursuant to the provisions of Section 38-5-70. This service is considered sufficient service upon the company. When legal process against any company with the fee provided in this section is served upon the director, he shall immediately forward by registered or certified mail one of the duplicate copies prepaid directed toward the company at its home office or, in the case of a fraternal benefit association, to its secretary or corresponding officer at the head of the association."
References revised
SECTION 260. Section 15-9-280(a) of the 1976 Code is amended to read:
"(a) Any act of transacting an insurance business as set forth in Section 38-25-110 by an unauthorized insurer is equivalent to and constitutes an irrevocable appointment by the insurer, binding upon him, his executor or administrator, or successor in interest if a corporation, of the Secretary of State or his successor in office to be the true and lawful attorney of the insurer upon whom may be served all lawful process in any action, suit, or proceeding in any court by the Director of the Department of Insurance or his designee, or by the State and upon whom may be served any notice, order, pleading, or process in any proceeding before the Department of Insurance and which arises out of transacting an insurance business in this State by the insurer. Any act of transacting an insurance business in this State by an unauthorized insurer is signification of its agreement that any such lawful process in such court action, suit, or proceeding and any such notice, order, pleading, or process in such administrative proceeding before the Department of Insurance so served are of the same legal force and validity as personal service of process in this State upon the insurer."
References revised
SECTION 261. Section 15-9-280(c) of the 1976 Code is amended to read:
"(c) The Secretary of State shall immediately forward by certified mail one of the copies of the process or the notice, order, pleading, or process in proceedings before the Department of Insurance to the defendant in the court proceeding or to whom the notice, order, pleading, or process in the administrative proceeding is addressed or directed at its last known principal place of business and shall keep a record of all process so served on him which shall show the day and hour of service. The service is sufficient if:
(1) notice of the service and a copy of the court process or the notice, order, pleading, or process in the administrative proceeding are sent within ten days thereafter by certified mail by the plaintiff or the plaintiff's attorney in the court proceeding or by the Department of Insurance in the administrative proceeding to the defendant in the court proceeding or to whom the notice, order, pleading, or process in the administrative proceeding is addressed or directed at the last known principal place of business of the defendant in the court or administrative proceeding; and
(2) the defendant's receipt or receipts issued by the post office with which the letter is registered, showing the name of the sender of the letter and the name and address of the person or insurer to whom the letter is addressed, and an affidavit of the plaintiff or the plaintiff's attorney in a court proceeding or of the Department of Insurance in an administrative proceeding, showing compliance therewith, are filed with the clerk of court in which the action, suit, or proceeding is pending or with the Department of Insurance in administrative proceedings, by the date the defendant in the court or administrative proceeding is required to appear or respond thereto, or within any further time as the court or the Department of Insurance may allow."
References revised
SECTION 262. Section 15-9-280(d) of the 1976 Code is amended to read:
"(d) No plaintiff is entitled to a judgment by default, a judgment with leave to prove damages, or a judgment pro confesso in any court or administrative proceeding in which court process or notice, order, pleading, or process in proceedings before the Department of Insurance is served under this section until the expiration of thirty days from the date of filing of the affidavit of compliance."
References revised
SECTION 263. Section 15-9-310 of the 1976 Code is amended to read:
"Section 15-9-310. Service of process on the attorney, as defined in Section 38-45-20, for subscribers, as defined in Section 38-45-10, to reciprocal or interinsurance contracts shall be made by serving three copies thereof upon the Director of the Department of Insurance as the agent of such attorney pursuant to the provisions of Section 38-45-60. The director shall file one copy, forward one copy to the attorney and return one copy with his acceptance of service."
Name change
SECTION 264. Section 15-9-350 of the 1976 Code is amended to read:
"Section 15-9-350. The acceptance by a nonresident of the rights and privileges conferred by the laws in force in this State permitting the operation of motor vehicles, as evidenced by the operation of a motor vehicle by such nonresident on the public highways, the streets of any incorporated municipality or the public roads of this State or anywhere within this State, or the operation by such nonresident of a motor vehicle on any such public highways, streets or public roads or anywhere within this State other than as so permitted or regulated shall be deemed equivalent to the appointment by such nonresident of the Director of the Department of Revenue and Taxation or of his successor in office to be his true and lawful attorney upon whom may be served all summons or other lawful process in any action or proceeding against him growing out of any accident or collision in which such nonresident may be involved by reason of the operation by him, for him or under his control or direction, express or implied, of a motor vehicle on such public highways, streets or public roads or anywhere within this State. Such acceptance or operation shall be a signification of his agreement that any such process against him shall be of the same legal force and validity as if served on him personally."
Name change
SECTION 265. Section 15-9-360 of the 1976 Code is amended to read:
"Section 15-9-360. The acceptance by a nonresident motor carrier of the rights and privileges conferred by the laws now or hereafter in force in this State, permitting the operation of motor vehicles as evidenced by the operation of a motor vehicle by such nonresident either personally or through an agent or employee on the public highways in this State, or the operation of such nonresident either personally or through an agent, lessee, or employee, of a motor vehicle on the public highways of this State other than as so permitted or regulated, shall be deemed equivalent to the appointment by such nonresident motor carrier of the Director of the Department of Revenue and Taxation, or his successor in office, to be his true and lawful attorney and the attorney of his executor or administrator, upon whom may be served all summonses or other lawful process or notice in any action, assessment proceeding, or other proceeding against him or his executor or administrator, arising out of or by reason of any provisions in Chapter 31 of Title 12 relating to such vehicle or relating to the liability for tax with respect to operation of such vehicle on the highways of this State. Said acceptance or operation shall be a signification by such nonresident motor carrier of his agreement that any such process against or notice to him or his executor or administrator shall be of the same legal force and validity as if served on him personally or on his executor or administrator. All of the provisions of Sections 15-9-370, 15-9-380, and 15-9-350 shall be applicable with respect to the service of process or notice pursuant to this section."
Name change
SECTION 266. Section 15-9-370 of the 1976 Code is amended to read:
"Section 15-9-370. Service of process upon the Director of the Department of Revenue and Taxation, as agent of a: (a) nonresident driver under the provisions of Section 15-9-350; (b) resident driver who subsequently becomes a nonresident; (c) nonresident motor carrier under the provisions of Section 15-9-360; or (d) nonresident unregulated motor carriers engaged in transporting persons, hauling farm or dairy products, hauling any other perishable products or haulers of lumber or logs, shall be made by leaving a copy thereof, with a fee of four dollars, in the hands of the Director of the Department of Revenue and Taxation or his office and such service shall be sufficient service upon the nonresident if notice of the service and a copy of the process are forthwith sent by certified mail by the plaintiff or the Director of the Department of Revenue and Taxation to the defendant and the defendant's return receipt and the plaintiff's affidavit of compliance herewith are appended to the summons or other process and filed with the summons, complaint and other papers in the cause. The Director of the Department of Revenue and Taxation shall keep a record of all processes which shall show the day and hour of service upon him. When the certified return receipt shall be returned to the Director of the Department of Revenue and Taxation, he shall deliver it to the plaintiff on request and keep a record showing the date of its receipt by him and its delivery to the plaintiff."
References revised
SECTION 267. Section 15-9-380 of the 1976 Code is amended to read:
"Section 15-9-380. If the defendant in any such cause shall fail or refuse to accept and receipt for certified mail containing the notice of service and copy of the process and it shall be returned to the plaintiff or the motor vehicle records division of the Department of Public Safety, the original envelope as returned shall be retained and the notice and copy of the summons shall be sent by open mail and the envelope and affidavit of mailing with sufficient postage of such open letter shall be filed with the clerk of court in which such action is pending and upon the filing thereof shall have the same force and legal effect as if such process has been personally served upon such defendant."
Name change
SECTION 268. Section 15-9-390 of the 1976 Code is amended to read:
"Section 15-9-390. Service of process upon the Director of the Department of Commerce, as agent of the nonresident operator of any aircraft which has set down in South Carolina, shall be made by leaving a copy thereof, with a fee of four dollars, in the hands of the director or his office and such service shall be sufficient service upon the nonresident if notice of the service and a copy of the process are forthwith sent by certified mail by the plaintiff or the director or his designee to the defendant and the defendant's return receipt and the plaintiff's affidavit of compliance herewith are appended to the summons or other process and filed with the summons, complaint and other papers in the cause. The director or his designee shall keep a record of all processes which shall show the day and hour of service upon him. When the certified return receipt shall be returned to the director or his designee, he shall deliver it to the plaintiff on request and keep a record showing the date of its receipt by him and its delivery to the plaintiff."
Name change
SECTION 269. Section 15-9-410 of the 1976 Code is amended to read:
"Section 15-9-410. The provisions of Sections 15-9-390 and 15-9-400 shall not apply to any incorporated air carrier holding a certificate of public convenience and necessity from the Division of Aeronautics of the Department of Commerce."
References revised
SECTION 270. Section 15-9-415 of the 1976 Code is amended to read:
"Section 15-9-415. Service of process upon the Director of the South Carolina Department of Natural Resources, as agent of the nonresident operator of any vessel as defined in Section 50-21-10 in the waters of this State as defined in Section 50-21-10, shall be made by leaving a copy thereof, with a fee of four dollars, in the hands of the director or his office and such service shall be sufficient service upon the nonresident if notice of the service and a copy of the process are forthwith sent by certified mail by the plaintiff or the director to the defendant and the defendant's return receipt and the plaintiff's affidavit of compliance herewith are appended to the summons or other process and filed with the summons, complaint and other papers in the cause. The director shall keep a record of all processes which shall show the day and hour of service upon him. When the certified return receipt shall be returned to the director, he shall deliver it to the plaintiff on request and keep a record showing the date of its receipt by him and its delivery to the plaintiff."
Victim's Compensation Fund and Office of Victim's Assistance restructured
SECTION 271. Section 16-3-1110 of the 1976 Code is amended to read:
"Section 16-3-1110. For the purpose of this article and Articles 14 and 15 of this chapter:
(1) `Board' means the South Carolina Crime Victim's Advisory Board.
(2) `Claimant' means any person filing a claim pursuant to this article.
(3) `Fund' means the South Carolina Victim's Compensation Fund, which is a division of the Office of the Governor.
(4) `Director' means the Director of the Victim's Compensation Fund who is appointed by the Governor. The director shall be in charge of the State Office of Victim's Assistance which is part of this division under the supervision of the Governor.
(5) `Field representative' means a field representative of the State Victim's Compensation Fund assigned to handle a claim.
(6) `Crime' means an act which is defined as a crime by state, federal, or common law. Unless injury or death was recklessly or intentionally inflicted, `crime' does not include an act involving the operation of a motor vehicle, boat, or aircraft.
(7) `Recklessly or intentionally' inflicted injury or death includes, but is not limited to, injury or death resulting from an act which violates Sections 56-5-1210, 56-5-2910, 56-5-2920, or 56-5-2930 or from the use of a motor vehicle, boat, or aircraft to flee the scene of a crime in which the driver of the motor vehicle, boat, or aircraft knowingly participated.
(8) `Victim' means a person who suffers direct or threatened physical, emotional, or financial harm as the result of an act by someone else, which is a crime. The term includes immediate family members of a homicide victim or of any other victim who is either incompetent or a minor and includes an intervenor.
(9) `Intervenor' means a person other than a law enforcement officer performing normal duties, who goes to the aid of another, acting not recklessly, to prevent the commission of a crime or lawfully apprehend a person reasonably suspected of having committed a crime.
(10) `Deputy director' means the Deputy Director of the Victim's Compensation Fund.
(11) `Panel' means a three-member panel of the board designated by the board chairman to hear appeals."
Fund director appointed by Governor
SECTION 272. Section 16-3-1120 of the 1976 Code is amended to read:
"Section 16-3-1120. A director of the Victim's Compensation Fund must be appointed by the Governor and shall serve at his pleasure. The director is responsible for administering the provisions of this article. Included among the duties of the director is the responsibility, with approval of the South Carolina Crime Victim's Advisory Board as established in this article, for developing and administering a plan for informing the public of the availability of the benefits provided under this article and procedures for filing claims for the benefits.
The director, upon approval by the South Carolina Crime Victim's Advisory Board, has the following additional powers and duties:
(1) to appoint a deputy director of the Victim's Compensation Fund, and staff necessary for the operation thereof, and to contract for services. The director shall recommend the salary for the deputy director and other staff members, as allowed by statute or applicable law;
(2) the board shall promulgate regulations to carry out the provisions and purposes of this article and Article 14 of this chapter. Regulations pertaining to this article and Article 14 of this chapter in effect on July 1, 1993, shall remain in full force and effect until otherwise amended as provided by law;
(3) to request from the Attorney General, South Carolina Law Enforcement Division, solicitors, magistrates, judges, county and municipal police departments, and any other agency or department such assistance and data as will enable the director to determine whether, and the extent to which, a claimant qualifies for awards. Any person, agency, or department listed above is authorized to provide the director with the information requested upon receipt of a request from the director. Any provision of law providing for confidentiality of juvenile records does not apply to a request of the deputy director, the director, the board, or a panel of the board pursuant to this section;
(4) to reinvestigate or reopen previously decided award cases as the deputy director considers necessary;
(5) to require the submission of medical records as are needed by the board, a panel of the board, or deputy director or his staff and, when necessary, to direct medical examination of the victim;
(6) to take or cause to be taken affidavits or depositions within or without the State. This power may be delegated to the deputy director or the board or its panel;
(7) to render each year to the Governor and to the General Assembly a written report of the activities of the Victim's Compensation Fund pursuant to this article;
(8) to delegate the authority to the deputy director to reject incomplete claims for awards or assistance;
(9) to render awards to victims of crime or to those other persons entitled to receive awards in the manner authorized by this article. The power may be delegated to the deputy director;
(10) to apply for funds from, and to submit all necessary forms to, any federal agency participating in a cooperative program to compensate victims of crime;
(11) to delegate to the board or a panel of the board on appeal matters any power of the director or deputy director."
Department name changed
SECTION 273. Section 16-11-340 of the 1976 Code is amended to read:
"Section 16-11-340. The South Carolina Department of Revenue and Taxation, with funds already appropriated to the department, shall print and distribute to each business establishment in this State, to which has been issued a retail sales tax license, a cardboard placard not less than eight inches by eleven inches which shall bear the following inscription in letters not less than three-fourths inch high:
`BY ACT OF THE SOUTH CAROLINA GENERAL ASSEMBLY ANY PERSON CONVICTED OF ARMED ROBBERY SHALL SERVE A SENTENCE OF NO LESS THAN SEVEN YEARS AT HARD LABOR WITHOUT PAROLE.'
Such placard shall be prominently displayed in all retail establishments to which they are issued."
Conservation officers renamed
SECTION 274. Section 16-23-20(1) of the 1976 Code is amended to read:
"(1) Regular, salaried law enforcement officers of a municipality, county of the State, uncompensated Governor's constables, law enforcement officers of the federal government or other states when they are carrying out official duties while in this State, deputy enforcement officers of the Natural Resources Enforcement Division of the Department of Natural Resources within their territorial jurisdictions, and reserve police officers while serving and functioning as law enforcement officers as authorized by Section 23-28-10 et seq."
Department name changed
SECTION 275. Section 16-27-60 of the 1976 Code is amended to read:
"Section 16-27-60. (a) The provisions of Section 16-27-30 do not apply to any person:
(1) using any animal to pursue or take wildlife or to participate in hunting in accordance with the game and wildlife laws of this State and regulations of the South Carolina Department of Natural Resources;
(2) using any animal to work livestock for agricultural purposes;
(3) properly training or using dogs for law enforcement purposes or protection of persons and private property.
(b) The provisions of this chapter do not apply to game fowl."
Department name changed
SECTION 276. Section 16-27-80 of the 1976 Code is amended to read:
"Section 16-27-80. This chapter shall not apply to dogs used for the purpose of hunting or for dogs used in field trials in more commonly known as `water races', `Treeing Contests', `Coon-on-a-log', `Bear-Baying', or `Fox-pen-trials'. Such `Fox-pen-trials' must be approved by permit for field trials by the South Carolina Department of Natural Resources."
References revised
SECTION 277. Section 17-13-80 of the 1976 Code is amended to read:
"Section 17-13-80. Whenever a warrant has been issued against a corporation under the provisions of Section 22-3-750 or an indictment has been returned against it under the provisions of Section 17-19-70, a copy of the warrant or indictment, accompanied in the case of an indictment by a notice to such corporation of the term of the court of general sessions at which such case shall be tried, shall be served upon such corporation in the manner provided by law for the service of process in civil actions. And when there is no agent or officer of the company within the county the service shall be made upon such person as is in charge of the property of the corporation and, if no such person can be found, it shall be served upon the Secretary of State, who shall transmit a copy of the warrant or indictment and notice by mail to the last known residence of the managing officer of the corporation, directed to such officer; provided, that in the case of a foreign corporation if such foreign corporation have no agent or other officer within the county in which the offense, or some part thereof, has been committed then process shall be served on the person appointed by such corporation to receive service of process as now required by law regulating foreign corporations or upon the Director of the Department of Insurance when by law service of process in civil actions may be made upon the Director of the Department of Insurance and such service shall be made in the same manner provided by law for service of summons in civil actions against such corporations."
References revised
SECTION 278. Section 19-5-30 of the 1976 Code is amended to read:
"Section 19-5-30. Photostatic or certified copies of motor vehicle registration applications, registrations, notices of cancellation, suspensions or revocations, reports of violations and documents pertaining to the motor vehicle safety responsibility laws of this State, when certified by the Deputy Director of the Motor Vehicle Records Vehicle Inspection Division of the Department of Public Safety as true copies of originals, on file with the Department of Public Safety, shall be admissible in any proceedings in any court in like manner as the original thereof."
Administration of Guardian as Litem Program changed
SECTION 279. Section 20-7-121 of the 1976 Code is amended to read:
"Section 20-7-121. There is created the South Carolina Guardian ad Litem Program to serve as a statewide system to provide training and supervision to volunteers who serve as court appointed special advocates for children in abuse and neglect proceedings within the Family Court, pursuant to Section 20-7-110. This program must be administered by the Office of the Governor."
Commissioner changed to director
SECTION 280. Section 20-7-128 of the 1976 Code is amended to read:
"Section 20-7-128. (A) There is created the South Carolina Guardian ad Litem Program Advisory Board consisting of seven members as follows:
(1) the chairman of the Joint Legislative Committee on Children, or his designee;
(2) the Director of the Department of Social Services, or his designee;
(3) the President of the State Council of Family Court Judges, or his designee;
(4) the Director of the Division of Court Administration, or his designee;
(5) two Family Court judges appointed by the Chief Justice of the State Supreme Court;
(6) a private attorney who practices family or domestic law appointed by the chairman of the Joint Legislative Committee on Children.
(B) The terms of the members are coterminous with their terms of office or with their positions except for the private attorney. The term of the attorney is for two years.
(C) The chairman of the Joint Legislative Committee on Children shall serve as chairman of the board. The board shall meet at least four times annually and more frequently upon the call of the chairman to review and evaluate the activities of the Guardian ad Litem Program."
Department name changed
SECTION 281. Section 20-7-410 of the 1976 Code is amended to read:
"Section 20-7-410. The magistrate courts and municipal courts of this State have concurrent jurisdiction with the Family Courts for the trial of persons under seventeen years of age charged with traffic violations or violations of the provisions of Title 50 relating to fish, game, and watercraft when these courts would have jurisdiction of the offense charged if committed by an adult. The Family Court shall report all adjudications of juveniles for moving traffic violations to the Department of Public Safety as required by other courts of this State pursuant to Section 56-1-330 and adjudications of the provisions of Title 50 to the Department of Natural Resources."
Department of Youth Services changed to Department of Juvenile Justice
SECTION 282. Section 20-7-600 of the 1976 Code is amended to read:
"Section 20-7-600. (A) When a child found violating a criminal law or ordinance, or whose surroundings are such as to endanger his welfare, is taken into custody, the taking into custody is not an arrest. The jurisdiction of the court attaches from the time of the taking into custody. When a child is so taken into custody, the officer taking the child into custody shall notify the parent, guardian, or custodian of the child as soon as possible. Unless otherwise ordered by the court, the person taking the child into custody may release the child to a parent, a responsible adult, a responsible agent of a court-approved foster home, group home, nonsecure facility, or program upon the written promise, signed by the person, to bring the child to the court at a stated time or at a time the court may direct. The written promise, accompanied by a written report by the officer, must be submitted to the South Carolina Department of Juvenile Justice as soon as possible, but not later than twenty-four hours after the child is taken into custody. If the person fails to produce the child as agreed, or upon notice from the court, a summons or a warrant may be issued for the apprehension of the person or of the child.
(B) When a child is not released pursuant to subsection (A), the officer taking the child into custody immediately shall notify the authorized representative of the Department of Juvenile Justice, who shall respond within one hour to the location where the child is being detained. Upon responding, the authorized representative of the department shall review the facts in the officer's report or petition and any other relevant facts and determine if there is a need for detention of the child. The officer's written report must be furnished to the authorized representatives of the department and must state:
(1) the facts of the offense;
(2) the reason why the child was not released to the parent. Unless the child is to be detained, the child must be released by the authorized representative of the department to the custody of his parents or other responsible adult upon their written promise to bring the child to the court at a stated time or at a time the court may direct. However, if the offense for which the child was taken into custody is a violent crime as defined in Section 16-1-60 the child may be released only by the authorized representative of the department with the consent of the officer who took the child into custody.
(C) No child may be transported to a juvenile detention facility in a police vehicle which also contains adults under arrest. No child may be placed in secure confinement or ordered detained by the court in secure confinement in an adult jail or other place of detention for adults for more than six hours. However, the prohibition against the secure confinement of juveniles in adult jails does not apply to juveniles who have been waived to the Court of General Sessions for the purpose of standing trial as an adult. Juveniles placed in secure confinement in an adult jail during this six-hour period must be confined in an area of the jail which is separated by sight and sound from adults similarly confined.
(D) Peace officers' records of children must be kept separate from records of adults, must not be open to public inspection, and may be open to inspection only by governmental agencies authorized by the judge.
(E) When a child is to be transported to a juvenile detention facility following a detention screening review conducted by the Department of Juvenile Justice or after a detention order has been issued by the court, the local law enforcement agency which originally took the child into custody shall transport this child to the juvenile detention facility.
(F) When the authorized representative of the Department of Juvenile Justice determines that placement of a juvenile outside the home is necessary, he shall make a diligent effort to place the child in an approved home, program, or facility, other than a secure juvenile detention facility, when these alternatives are appropriate and available. A child is eligible for detention in a secure juvenile detention facility only if the child:
(1) is charged with a violent crime as defined in Section 16-1-60;
(2) is charged with a crime which, if committed by an adult, would be a felony other than a violent crime, and the child:
(a) is already detained or on probation or conditional release in connection with another delinquency proceeding;
(b) has a demonstrable recent record of wilful failures to appear at court proceedings;
(c) has a demonstrable recent record of violent conduct resulting in physical injury to others; or
(d) has a demonstrable recent record of adjudications for other felonies; and:
(i) there is clear and convincing evidence to establish a risk of flight, or serious harm to others; or
(ii) the instant offense involved the use of a firearm;
(3) is a fugitive from another jurisdiction;
(4) requests protection in writing under circumstances that present an immediate threat of serious physical injury. A child who meets the criteria provided in this subsection is eligible for detention. Detention is not mandatory for a child meeting the criteria if that child can be supervised adequately at home or in a less secure setting or program.
(G) A child who is taken into custody because of a violation of law which would not be a criminal offense under the laws of this State if committed by an adult must not be placed or ordered detained in an adult detention facility. A child who is taken into custody because of a violation of the law which would not be a criminal offense under the laws of this State if committed by an adult must not be placed or ordered detained more than twenty-four hours in a juvenile detention facility, unless an order previously has been issued by the court, of which the child has notice and which notifies the child that further violation of the court's order may result in the secure detention of that child in a juvenile detention facility. If a juvenile is ordered detained for violating a valid court order, the juvenile may be held in secure confinement in a juvenile detention facility for not more than seventy-two hours, excluding weekends and holidays. However, nothing in this section precludes a law enforcement officer from taking a status offender in custody.
(H) If the authorized representative of the Department of Juvenile Justice has not released the child to the custody of his parents or other responsible adult, the court shall hold a detention hearing within twenty-four hours from the time the child was taken into custody, excluding Saturdays, Sundays, and holidays. At this hearing, the authorized representative of the department shall submit to the court a report stating the facts surrounding the case and a recommendation as to the child's continued detention pending the adjudicatory and dispositional hearings. The court shall appoint counsel for the child if none is retained. No child may proceed without counsel in this hearing, unless the child waives the right to counsel, and then only after consulting at least once with an attorney. At the conclusion of this hearing, the court shall determine whether probable cause exists to justify the detention of the child as well as determining the appropriateness of, and need for, the child's continued detention. If continued detention of a juvenile is considered appropriate by the court and if a juvenile detention facility exists in that county which meets state and federal requirements for the secure detention of juveniles, or if that facility exists in another county with which the committing county has a contract for the secure detention of its juveniles, and if commitment of a juvenile by the court to that facility does not cause it to exceed its design and operational capacity, the Family Court shall order the detention of the juvenile in that facility. Periodic reviews of the detention order must be conducted in accordance with the rules of practice in a Family Court. However, a juvenile must not be detained in secure confinement in excess of ninety days. If the child does not qualify for detention or otherwise require continued detention under the terms of subsection (F), the child must be released to a parent, guardian, or other responsible person."
Department name changed; obsolete language deleted
SECTION 283. Section 20-7-630 of the 1976 Code is amended to read:
"Section 20-7-630. The Department of Juvenile Justice shall provide intake and probation services for juveniles brought before the Family Courts of this State and for persons committed or referred to the Department of Juvenile Justice in cooperation with all local officials or agencies concerned. All recommendations by the Department of Juvenile Justice as to intake shall be reviewed by the office of the solicitor in the circuit concerned and the final determination as to whether or not the juvenile shall be prosecuted in Family Court shall be made by the solicitor or of his authorized assistant. Statements of the juvenile contained in the department files shall not be furnished to the solicitor's office as part of the intake review procedure nor shall the solicitor's office be privy to such statements in connection with its intake review."
Commissioner changed to director
SECTION 284. Section 20-7-655(B) of the 1976 Code, as added by Act 448 of 1992, is amended to read:
"(B) The director shall appoint a child protective services appeals committee for each case decision which is appealed. The committee must be comprised of three officials or employees of the Department of Social Services, none of whom may be a resident of or employed by the local child protective services agency in the county where the case originates or a member of the investigative unit which investigated the case if the case decision being appealed involves institutional abuse."
Department name changed
SECTION 285. Section 20-7-770 of the 1976 Code is amended to read:
"Section 20-7-770. Notwithstanding the right of a person to petition the Family Court pursuant to Section 20-7-780 for the release of a person's record of juvenile adjudications, upon the request of the Attorney General or a circuit solicitor which is made pursuant to a current criminal investigation or prosecution, the Department of Juvenile Justice shall provide the requesting party with a copy of the juvenile criminal record of a person adjudicated as a juvenile for the commission of a violent crime, as defined in Section 16-1-60. A person with a record for an adjudicated violent crime must have his juvenile criminal record maintained by the Department of Juvenile Justice for at least ten years after the date of the violent offense adjudication."
Department name changed
SECTION 286. Section 20-7-780 of the 1976 Code is amended to read:
"Section 20-7-780. (A) The court shall make and keep records of all cases brought before it and shall devise and cause to be printed forms for social and legal records and other papers as may be required. The official juvenile records of the courts and the Department of Juvenile Justice are open to inspection only by consent of the judge to persons having a legitimate interest but always must be available to the legal counsel of the juvenile. All information obtained and social records prepared in the discharge of official duty by an employee of the court or Department of Juvenile Justice is confidential and must not be disclosed directly or indirectly to anyone, other than the judge or others entitled under this chapter to receive this information unless otherwise ordered by the judge. However, these records are open to inspection without the consent of the judge where the records are necessary to defend against an action initiated by a juvenile.
(B) The Department of Juvenile Justice, if requested, shall provide the victim of a violent crime, as defined in Section 16-1-60, with the name and other basic descriptive information about the juvenile charged with the crime and with information about the juvenile justice system, the status and disposition of the delinquency action, including hearing dates, times, and locations, and concerning services available to victims of juvenile crime. The name, identity, or picture of a child under the jurisdiction of the court, pursuant to this chapter, must not be made public by a newspaper, radio, or television station except as authorized by order of the court.
(C) A juvenile charged with committing a violent offense as defined in Section 16-1-60, or charged with committing grand larceny of a motor vehicle, may be fingerprinted by the law enforcement agency who takes the juvenile into custody. A juvenile charged with committing a nonviolent or status offense must not be fingerprinted by law enforcement except upon order of a Family Court judge. The fingerprint records of a juvenile must be kept separate from the fingerprint records of adults. The fingerprint records of a juvenile must not be transmitted to the files of the State Law Enforcement Division or to the Federal Bureau of Investigation or otherwise distributed or provided to another law enforcement agency unless the juvenile is adjudicated delinquent for having committed a violent offense, as defined in Section 16-1-60, or for grand larceny of a motor vehicle. The fingerprint records of a juvenile who is not adjudicated delinquent for having committed a violent offense, as defined in Section 16-1-60, or for grand larceny of a motor vehicle upon notification to law enforcement, must be destroyed or otherwise expunged by the law enforcement agency who took the juvenile into custody. The Department of Juvenile Justice may fingerprint and photograph a juvenile upon commitment to a juvenile correctional institution. Fingerprints and photographs taken by the Department of Juvenile Justice remain confidential and must not be transmitted to the State Law Enforcement Division, the Federal Bureau of Investigation, or another agency or person, except for the purpose of aiding the department in apprehending an escapee from the department or assisting the Missing Persons Information Center in the location or identification of a missing or runaway child."
Department name changed
SECTION 287. Section 20-7-1330(a) of the 1976 Code is amended to read:
"(a) place the child on probation or under supervision in his own home or in the custody of a suitable person elsewhere, upon conditions as the court may determine. Any child placed on probation by the court remains under the authority of the court only until the expiration of the specified term of his probation. This specified term of probation may expire before but not after the eighteenth birthday of the child. Probation means casework services during a continuance of the case. Probation must not be ordered or administered as punishment, but as a measure for the protection, guidance, and well-being of the child and his family. Probation methods must be directed to the discovery and correction of the basic causes of maladjustment and to the development of the child's personality and character, with the aid of the social resources of the community. The court may impose restitution or participation in supervised work or community service as a condition of probation. The Department of Juvenile Justice, in coordination with local community agencies, shall develop and encourage employment of a constructive nature designed to make reparation and to promote the rehabilitation of the child. If the court imposes as a condition of probation a requirement that restitution in a specified amount be paid, the amount to be paid as restitution may not exceed five hundred dollars. The Department of Juvenile Justice shall develop a system for the transferring of any court ordered restitution from the juvenile to the victim or owner of any property injured, destroyed, or stolen."
Counties to provide facilities for intake and probation services for Department of Juvenile Justice; obsolete language deleted
SECTION 288. Section 20-7-1490 of the 1976 Code is amended to read:
"Section 20-7-1490. Each county shall provide sufficient physical facilities for the operation of the statewide Family Court system in that county, including facilities necessary for the provision of intake and probation services by the Department of Juvenile Justice."
Commissioner changed to director
SECTION 289. Section 20-7-1645 of the 1976 Code is amended to read:
"Section 20-7-1645. A state agency which places a child in a foster home may compensate a foster family, who has made its private residence available as a foster home, for the uninsured loss it incurs when its personal or real property is damaged, destroyed, or stolen by a child placed in its home, if the loss is found by the director of the placing state agency, or his designee, to have occurred, to have been caused solely or primarily by the acts of the child placed with the foster family, and if the acts of the foster family have not in any way caused or contributed to the loss. Compensation may not be in excess of the actual cost of repair or replacement of the damaged or destroyed property but in no case may compensation exceed five hundred dollars for each occurrence."
Department name changed; quarterly reviews of juvenile offenders may be waived by parole board
SECTION 290. The first paragraph of Section 20-7-2095 of the 1976 Code is amended to read:
"The Board of Juvenile Parole (parole board) shall meet monthly, and at other times as may be necessary, to review the records and progress of children committed to the custody of the Department of Juvenile Justice for the purpose of deciding the release or revocation of release of such children. The parole board shall make periodic inspections, at least quarterly, of the records of persons committed to the custody of the Department of Juvenile Justice and may, in its discretion, issue temporary and final discharges or release such persons conditionally and prescribe conditions for such release into aftercare. It shall be the right of any such juvenile to personally appear before the parole board every three months for the purpose of parole consideration, but no such appearance shall begin until the parole board determines that an appropriate period of time has elapsed since the juvenile's commitment. In addition, and at the discretion of the parole board, the quarterly reviews of juveniles committed to the department for having committed a violent offense, as defined in Section 16-1-60, may be waived by the parole board until the juvenile reaches the minimum parole guidelines established for the juvenile by the parole board. In order to allow such reviews and personal appearances by children, the chairman of the parole board may assign the members to meet in panels of not less than three members to receive progress reports and recommendations, review cases, meet with children, meet with counselors, and to hear matters and consider cases for release, parole, and parole revocation. Membership on such panels shall be periodically rotated on a random basis by the chairman. At the meetings of the panels, any unanimous vote shall be considered the final decision of the parole board. Any panel vote that is not unanimous shall not be considered as a final decision of the parole board and the matter shall be referred to the full parole board, which shall determine the matter by a majority vote of its membership."
Commissioner changed to director; Director to employ deputy director of parole; department to provide support services to parole board
SECTION 291. Section 20-7-2115 of the 1976 Code is amended to read:
"Section 20-7-2115. The department is charged with the responsibility of making aftercare investigations to determine suitable placement for children considered for conditional release from the correctional schools. The department shall also have the responsibility of supervising the aftercare program, making revocation investigations, and submitting findings to the parole board.
The director and such staff as he shall designate in the performance of their duties of investigation, counseling and supervision, and revocation investigations, are considered official representatives of the parole board.
The director and his staff shall be subject to the rules and regulations for parole and parole revocation promulgated by the parole board and shall meet with the parole board at its meetings when requested. Community-based counselors, or their supervisors, with assigned clients committed to institutions of the department shall periodically visit the institutions in order to counsel their clients and accomplish such duties as outlined in this subarticle.
Recognizing the need to maintain autonomy and to provide a check and balance system, the Director of the Department of Juvenile Justice shall employ a deputy director of parole and other staff necessary to carry out the duties of parole examinations, victim liaison, and revocation hearings. The deputy director serves at the will and pleasure of the Director of Department of Juvenile Justice. All staff are employees of the department and are directly responsible to the department both administratively and operationally. Funds allocated for the functions designated in this section must be incorporated as a line item within the department's budget.
The department shall continue to provide the budgetary, fiscal, personnel, and training information resources and other support considered necessary by the parole board to perform its mandated functions."
Changed age from 18 to 19 for latest time at which conditional release must expire; department name changed
SECTION 292. Section 20-7-2125 of the 1976 Code is amended to read:
"Section 20-7-2125. Any juvenile, who shall have been conditionally released from a correctional school, shall remain under the authority of the parole board until the expiration of the specified term imposed in his conditional aftercare release. The specified period of conditional release may expire before but not after the nineteenth birthday of the juvenile. Each juvenile conditionally released shall be subject to the conditions and restrictions of his release and may at any time on the order of the parole board be returned to the custody of a correctional institution for violation of aftercare rules or conditions of release.
As a condition of correctional release, the parole board may impose participation in the restitution, work and community service programs as established by the Department of Juvenile Justice pursuant to item (a) of Section 20-7-1330."
Board responsibilities changed to director; department name change
SECTION 293. Section 20-7-2155 of the 1976 Code is amended to read:
"Section 20-7-2155. To be eligible for appointment as a probation counselor, an applicant must possess all of the following:
(a) a college degree involving special training in the field of social science, or its equivalent;
(b) a personality and character as would render him suitable for the functions of the office.
Probation counselors shall live in districts as shall be determined by the director. Each counselor shall periodically visit the schools under the supervision of the Department of Juvenile Justice and familiarize himself with the records, background and needs of the children, and shall make periodic reports to the school.
Duties of the probation counselors shall be to make such investigation of the child and home as may be required by the court; to be present in court at the hearing of cases and to furnish to the court such information and assistance as the judge may require; and to take charge of any child before and after hearing as may be directed by the court. During the probationary period of any child and during the time that the child may be committed to any institution or to the care of any association or person for custodial or disciplinary purposes, the child shall always be subject to visitation by the probation counselors or other agents of the court."
Board responsibilities changed to department; department to arrange suitable corrective placement; department name changed
SECTION 294. Section 20-7-2170 of the 1976 Code is amended to read:
"Section 20-7-2170. A child after his twelfth birthday and before his seventeenth birthday, or while under the jurisdiction of the Family Court for disposition of an offense that occurred prior to his seventeenth birthday, may be committed to the custody of the Department of Juvenile Justice, which shall arrange for placement in a suitable corrective environment. Children under the age of twelve years may be committed only to the custody of the department, which shall arrange for placement in a suitable corrective environment other than institutional confinement. No child under the age of seventeen years shall be committed or sentenced to any other penal or correctional institution of this State.
When a child is adjudicated delinquent, convicted of a crime or has entered a plea of guilty or nolo contendere in a court authorized to commit to the custody of the Department of Juvenile Justice, such child may be committed for an indeterminate period until he has reached his twenty-first birthday or until sooner released by the Board of Juvenile Parole under its discretional powers.
Any sentence which includes commitment to the custody of the Department of Juvenile Justice for a crime which, when committed by an adult, would carry a maximum sentence of thirty years or more, shall include a further provision that the Board of Juvenile Parole may transfer such child to the Department of Juvenile Justice, which may then transfer the child to the Department of Corrections for confinement for a period, including time served in its custody, not to exceed thirty years. Such transfer shall be within the discretion of the Department of Juvenile Justice or the Board of Juvenile Parole as may be appropriate.
The court, before committing a child as a delinquent or as a part of a sentence including commitments for contempt, shall first temporarily commit the child to the Department of Juvenile Justice for a period not to exceed forty-five days for evaluation, and the department shall make a recommendation to the court prior to final commitment. The committing judge may waive in writing temporary commitment in cases where the child concerned has within the past year either been evaluated by a center and the evaluation is available to the court or has within the past year been temporarily or finally discharged or conditionally released or paroled from a correctional institution of the Department of Juvenile Justice, and the child's previous evaluation or other equivalent information is available to the court. All commitments to the custody of the Department of Juvenile Justice for delinquency as opposed to the conviction of a specific crime may be made only for the reasons and in the manner prescribed in Sections 20-7-400, 20-7-410, 20-7-430, 20-7-460, 20-7-600, 20-7-620, 20-7-740, 20-7-750, 20-7-760, 20-7-770, 20-7-780, 20-7-1330, 20-7-1340, and 20-7-1520, with evaluations made and proceedings conducted only by the judges authorized to order commitments in this section. When a child is committed to the custody of the department under the proceedings, commitment must be for an indeterminate sentence, not extending beyond the twenty-first birthday of the child unless sooner released by the department.
Any juvenile who has not been paroled or otherwise released from the custody of the department by his nineteenth birthday shall be transferred to the custody and authority of the Youthful Offender Division of the Department of Corrections. If not sooner released by the Department of Corrections, the juvenile shall be released by his twenty-first birthday according to the provisions of his commitment; provided, however, that notwithstanding the above provision, any juvenile committed as an adult offender by order of the Court of General Sessions shall be considered for parole or other release according to the laws pertaining to release of adult offenders."
Board responsibilities changed to department
SECTION 295. Section 20-7-2175 of the 1976 Code is amended to read:
"Section 20-7-2175. Any child committed under the terms of this article shall be conveyed by the sheriff, deputy sheriff or persons appointed by the sheriff of the county in which such child resides, to the custody of the department, and the expense of such conveyance and delivery shall be borne by such county. The committing judge may, in his discretion, order that such child be transferred to the custody of the department without the attendance of an officer or in such manner as may be advisable."
Board responsibilities changed to department; custody by department includes facilities and programs
SECTION 296. Section 20-7-2180 of the 1976 Code is amended to read:
"Section 20-7-2180. From the time of lawful reception of any child by the Department of Juvenile Justice and during his stay in custody in a correctional institution, facility, or program operated by the department, he shall be under the exclusive care, custody, and control of the department. All expenses shall be borne by the State."
Board responsibilities changed to department
SECTION 297. Section 20-7-2185 of the 1976 Code is amended to read:
"Section 20-7-2185. Any commitment under this subarticle shall be full and sufficient authority to the department and to officers and agents thereof for the detention and keeping therein of any child until he arrives at the age of twenty-one years, unless sooner dismissed therefrom by order of the parole board, transferred to the Department of Corrections, or released therefrom by order of a judge of the Supreme Court or the Circuit Court of this State, rendered at chambers or otherwise, in a proceeding in the nature of an application for a writ of habeas corpus."
Board responsibilities changed to department
SECTION 298. Section 20-7-2190 of the 1976 Code is amended to read:
"Section 20-7-2190. From the time of the lawful reception of any child into custody by the department, and during the period of such custody, the department shall provide for, either solely or in cooperating with other agencies, the care, custody and control of such child, as well as make available instruction in such branches of useful knowledge as may be suited to his years and capacity that will enable such child to learn a useful trade."
Board responsibilities changed to department; commissioner changed to director
SECTION 299. Section 20-7-2195 of the 1976 Code is amended to read:
"Section 20-7-2195. The Department of Juvenile Justice, when authorized by an order of any circuit judge, shall, after notice to the Department of Corrections, transfer temporarily to the custody of the Youthful Offender Division any child who has been committed to the custody of the department who is more than seventeen years of age and whose presence in such custody appears to be seriously detrimental to the welfare of others in such custody. The director of the Department of Corrections shall receive such children as may be transferred thereto as herein provided and properly care for them. Each child thus transferred to the Youthful Offender Division shall be held therein, subject to all the rules and discipline of the division. Children transferred to the Youthful Offender Division pursuant to this section shall be under the authority of the division and subject to release according to the division's policies and procedures.
The Youthful Offender Division shall at least quarterly make recommendations to the parole board concerning possible release of each child so transferred or his return to institutions of the department."
Board responsibilities changed to department; department name changed
SECTION 300. Section 20-7-2200 of the 1976 Code is amended to read:
"Section 20-7-2200. It shall be unlawful for any person to:
(1) cause, aid, encourage or influence any child who is a ward of the Department of Juvenile Justice to:
(a) enter or remain in a house of prostitution, a house or lodging place used for immoral purposes or gambling place;
(b) violate any law of this State or ordinance of any city;
(c) indulge in vicious or immoral conduct; or
(d) violate his conditional release or run away from the supervision of the Department of Juvenile Justice;
(2) to harbor any child who has escaped from such authorities or who is running away from their supervision.
Any person who violates the provisions of this section is guilty of a misdemeanor and shall, upon conviction, be punished by a fine not exceeding five hundred dollars or imprisonment for a period not exceeding six months or both."
Department name changed
SECTION 301. Section 20-7-2203 of the 1976 Code is amended to read:
"Section 20-7-2203. (A) While on the institutional grounds of the department, it is unlawful to furnish, attempt to furnish, or to possess, with the intent to furnish, contraband to any juvenile committed to the custody of the Department of Juvenile Justice. `Juvenile', for purposes of this section, is defined as any person committed to the custody of the Department of Juvenile Justice. It is unlawful for a juvenile committed to the custody of the department to possess contraband.
(B) For purposes of this section, `contraband' is defined as:
(1) any device which may be used as a weapon, including, but not limited to, firearms, knives, blades, clubs, or billies; or
(2) drugs of any type or description, including, but not limited to, marijuana, cocaine, and any other controlled substance as listed in Chapter 53 of Title 44, for which a juvenile does not possess a current lawful prescription; or
(3) poisons or other dangerous chemicals which can cause injury or death; or
(4) flammable liquids of any type, including, but not limited to, gasoline, kerosene or lighter fluid; or
(5) any type of alcohol and any liquid containing any concentration of intoxicating alcohol; or
(6) keys, locks, or tools of any description not officially issued to the juvenile by the department; or
(7) any additional items determined to be contraband by the Director of the Department of Juvenile Justice.
(C) If the director determines any additional items to be contraband, a list of these items must be published and posted in conspicuous places so as to be seen readily by any person entering the institutional grounds or on the institutional grounds of the Department of Juvenile Justice.
(D) An adult found violating the provisions of this section is guilty of a felony and, upon conviction, must be punished by a fine of not less than one thousand dollars nor more than ten thousand dollars or imprisoned for not less than one year nor more than ten years, or both."
Department name changed
SECTION 302. Section 20-7-2205 of the 1976 Code is amended to read:
"Section 20-7-2205. A child who is guilty of a violation of law or other misconduct which would not be a criminal offense if committed by an adult or violates the conditions of probation for such an offense shall not be committed to the custody of a correctional institution operated by the Department of Juvenile Justice except for commitment for an indeterminate period not to exceed forty-five days for the purpose of evaluation, in accordance with the provisions of Section 20-7-2170."
Administrative law judge to hear appeals
SECTION 303. Section 20-7-2260 of the 1976 Code is amended to read:
"Section 20-7-2260. The department may revoke the license of any child welfare agency which fails to maintain the proper standards of care and service to children in its charge or which violates any provision of this subarticle. No license shall be revoked or its renewal refused except upon thirty days' written notice thereof. Upon appeal from such revocation or refusal to renew a license, the department shall, after thirty days' written notice thereof, hold a hearing, at which time the agency shall be given an opportunity to present testimony and confront witnesses. An appeal of the agency's decision may be made to an administrative law judge pursuant to the Administrative Procedures Act."
Commissioner changed to director; board responsibilities changed to director
SECTION 304. Section 20-7-2310 of the 1976 Code is amended to read:
"Section 20-7-2310. The Department of Social Services shall administer an adoption program on behalf of the State. Adoption services must be available statewide. The adoption program provided by the department must be a centrally administered state program. The department shall designate regions which will be administered by the state office. The adoption unit shall constitute a separate and distinct unit within the department so as to assure specialization of effort and effective access to the department director. This unit must be staffed with qualified personnel professionally trained in the social work or other related fields. The department shall continually evaluate its staffing, functions, policies, and practices on the basis of nationally recognized standards. A committee to advise the department on all children's services must be appointed by the department director. Persons appointed to the committee must be knowledgeable on adoption, protective services, foster care, and other children's services."
Review of the Foster Care of Children placed within Office of the Governor, etc.
SECTION 305. Section 20-7-2379 of the 1976 Code is amended to read:
"Section 20-7-2379. There is created, as part of the Office of the Governor, the Division for Review of the Foster Care of Children. The division must be supported by a board consisting of seven members, all of whom must be past or present members of local review boards. There must be one member from each congressional district and one member from the State at large, all appointed by the Governor with the advice and consent of the Senate. Terms of office for the members of the board are for four years and until their successors are appointed and qualify. Of the initial appointments, the Governor shall designate two members to serve for one year, two for a term of two years, two for a term of three years, and one for a term of four years. Thereafter, appointments must be made by the Governor in the manner as prescribed above for terms of four years to expire on June thirtieth of the appropriate year. The board shall elect from its members a chairman who shall serve for two years. Four members of the board constitute a quorum for the transaction of business. Members of the board shall receive per diem, mileage, and subsistence as provided by law for members of boards, commissions, and committees while engaged in the work of the board. The board shall meet at least quarterly and more frequently upon the call of the division director to review and coordinate the activities of the local review boards and make recommendations to the General Assembly with regard to foster care policies, procedures, and deficiencies of public and private agencies which arrange for foster care of children as determined by the review of cases provided for in items (A) and (B) of Section 20-7-2376. These recommendations must be included in an annual report, filed with the General Assembly, of the activities of the state office and local review boards. The board, upon recommendation of the division director, shall promulgate regulations to carry out the provisions of this subarticle. These regulations shall provide for and must be limited to procedures for: reviewing reports and other necessary information at state, county, and private agencies and facilities; scheduling of reviews and notification of interested parties; conducting local review board and board of directors' meetings; disseminating local review board recommendations, including reporting to the appropriate Family Court judges the status of judicially approved treatment plans; and developing policies for summary review of children privately placed in privately-owned facilities or group homes.
The Governor may employ a director to serve at his pleasure who may be paid an annual salary to be determined by the General Assembly. The director may be removed pursuant to the provisions of Section 1-3-240. The director shall employ staff as is necessary to carry out the provisions of this subarticle, and the staff must be compensated in an amount and in a manner as may be determined by the General Assembly. The provisions of this subarticle may not be construed to provide for subpoena authority."
Department name changed
SECTION 306. Section 20-7-2640 of the 1976 Code is amended to read:
"Section 20-7-2640. (A) A child with special needs who is a resident in the State who is the subject of an adoption assistance agreement with another state may receive medical assistance identification from this State upon the filing with the Department of Social Services of a certified copy of the agreement obtained from the adoption assistance state. In accordance with regulations of the department, the adoptive parents at least annually shall show that the agreement is still in force or has been renewed.
(B) The Department of Health and Human Services shall consider the holder of medical assistance identification pursuant to this section as any other holder of medical assistance identification under the laws of this State and shall process and make payment on claims on account of the holder in the same manner and pursuant to the same conditions and procedures as for other recipients of medical assistance.
(C) The Department of Health and Human Services or the Department of Social Services shall provide coverage and benefits for a child who is in another state and who is covered by an adoption assistance agreement made by the department for the coverage or benefits, if any, not provided by the residence state. To this end, the adoptive parents acting for the child may submit evidence of payment for services or benefit amounts not payable in the residence state and must be reimbursed for them. However, there is no reimbursement for services or benefit amounts covered under insurance or other third party medical contract or arrangement held by the child or the adoptive parents. The department shall promulgate regulations implementing this subsection. The additional coverages and benefit amounts provided pursuant to this subsection are for the costs of services for which there is no federal contribution, or which, if federally aided, are not provided by the residence state. The regulations must include, but are not limited to, procedures to be followed in obtaining prior approval for services in those instances where required for the assistance.
(D) The provisions of this section apply only to medical assistance for children under adoption assistance agreements from states that have entered into a compact with this State under which the other state provides medical assistance to children with special needs under adoption assistance agreements made by this State. All other children entitled to medical assistance pursuant to adoption assistance agreements entered into by this State are eligible to receive assistance in accordance with the laws and procedures applicable to the agreements."
Commissioner changed to director
SECTION 307. The following items of Section 20-7-2700 of the 1976 Code are amended to read:
"k. `Department' means the State Department of Social Services, the agency designated to administer the regulation of child day care facilities under subarticle, with the advice of the State Advisory Committee on the Regulation of Child Day Care Facilities.
l. `Committee' means the State Advisory Committee on the Regulation of Child Day Care Facilities, named under this subarticle to advise the department on regulatory matters related to child day care facilities.
m. `Director' means the administrative head of the department.
p. `Regular license' means a license issued by the department for two years to an operator of a private child day care center or group day care home or a family day care home which elects to be licensed showing that the licensee is in compliance with the provisions of this subarticle and the regulations of the department at the time of issuance and authorizing the licensee to operate in accordance with the license, this subarticle, and the regulations of the department.
q. `Provisional license' means a license issued by the department to an operator of a private child day care center or group day care home or a family day care home which elects to be licensed authorizing the licensee to begin operations although the licensee temporarily is unable to comply with all of the requirements for a license.
r. `Regular approval' means a written notice issued by the department for a two-year period to a department, agency or institution of the State, or a county, city, or other political subdivision, approving the operation of a public child day care center or group day care home in accordance with the provisions of the notice, this subarticle and the regulations of the department.
s. `Provisional approval' means a written notice issued by the department to a department, agency, or institution of the State, or a county, city, or other political subdivision approving the commencement the operations of a public child day care center or group day care home although the operator is temporarily unable to comply with all of the requirements for approval.
u. `Declaratory order' means a written statement on the part of the department approving plans for construction or renovation insuring against the imposition of more stringent regulations at a later date.
x. `Deficiency correction notice' means a written statement on the part of the department notifying a child day care facility which is not complying with any applicable regulations to correct the deficiencies stated in the notice within a reasonable time limit."
Commissioner changed to director; administrative law judge to hear appeal
SECTION 308. Section 20-7-2760 of the 1976 Code is amended to read:
"Section 20-7-2760. a. An applicant who has been denied a license by the department shall be given prompt written notice by certified or registered mail. The notice shall indicate the reasons for the proposed action and shall inform the applicant of the right to appeal the decision to the director in writing within thirty days after the receipt of notice of denial. An appeal from the final decision of the director may be taken to an administrative law judge pursuant to the Administrative Procedures Act.
b. A licensee whose application for renewal is denied or whose license is about to be revoked shall be given written notice by certified or registered mail. The notice shall contain the reasons for the proposed action and shall inform the licensee of the right to appeal the decision to the director or his designee in writing within thirty calendar days after the receipt of the notice. An appeal from the final decision of the director may be taken to an administrative law judge pursuant to the Administrative Procedures Act.
c. At the hearing provided for in this section, the applicant or licensee may be represented by counsel and has the right to call, examine and cross-examine witnesses and to otherwise introduce evidence. Parents appearing at the hearing may also be represented by counsel. The hearing examiner is empowered to require the presence of witnesses and evidence by subpoena on behalf of the appellant or department. The final decision of the department shall be in writing, shall contain the department's findings of fact and rulings of law and shall be mailed to the parties to the proceedings by certified or registered mail to their last known addresses as may be shown in the application, or otherwise. A full and complete record shall be kept of all proceedings, and all testimony shall be reported but need not be transcribed unless the department's decision is appealed, or a transcript is requested by an interested party. Upon an appeal, the department shall furnish to any appellant, free of charges, a certified copy of the transcript of all evidentiary proceedings before it. Other parties shall pay the cost of transcripts prepared at their request.
d. The decision of the department is final unless appealed by a party to an administrative law judge pursuant to the Administrative Procedures Act."
Commissioner changed to director
SECTION 309. Section 20-7-2830 of the 1976 Code is amended to read:
"Section 20-7-2830. a. An applicant or operator who has been denied approval or renewal of approval by the department shall be given prompt written notice thereof, which shall include a statement of the reasons for the denial. The notice shall also inform the applicant or operator that it may, within thirty days after the receipt of the notice of denial, appeal the denial by making a written request to the director or his designee for an opportunity to show cause why its application should not be denied.
b. Upon receiving a written petition, the director or his designee shall give the applicant or operator reasonable notice and an opportunity for a prompt, informal meeting with the director or his designee with respect to the action by the department, and an opportunity to submit written material. On the basis of the available evidence, including information obtained at the informal meeting and from the written material, the director or his designee shall decide whether the application shall be granted for approval, provisional approval or denied. The decision of the director or his designee shall be in writing, shall contain findings of fact and shall be mailed to the parties to the proceedings by certified or registered mail. Notification of the decision shall be sent to the Governor and appropriate officials of the state or local government."
Commissioner changed to director; appeals procedures revised
SECTION 310. Section 20-7-2880 of the 1976 Code is amended to read:
"Section 20-7-2880. (a) A registrant whose statement of registration has been withdrawn by the department shall be given written notice by certified or registered mail. The notice shall contain the reasons for the proposed action and shall inform the registrant of the right to appeal the decision to the director or his designee in writing within thirty calendar days after the receipt of the notice. Upon receiving a written appeal the director or his designee shall give the registrant reasonable notice and an opportunity for a prompt hearing before the director or his designee. On the basis of the evidence adduced at the hearing, the director or his designee shall make the final decision of the department as to whether the statement of registration shall be withdrawn. If no written appeal is made, the statement of registration shall be withdrawn as of the termination of the thirty-day period.
(b) At the hearing provided for in this section, the registrant may be represented by counsel, and has the right to call, examine and cross-examine witnesses and to otherwise introduce evidence. Parents appearing at the hearing may also be represented by counsel. The director is empowered to require the presence of witnesses and evidence by subpoena on behalf of the appellant or department. The final decision of the department shall be in writing, shall contain the department's findings of fact and rulings of law and shall be mailed to the parties to the proceedings by certified or registered mail. A full and complete record shall be kept of all proceedings, and all testimony shall be reported and need not be transcribed unless the decision is appealed, or a transcript is requested by an interested party. Upon an appeal, the department shall furnish to any appellate, free of charge, a certified copy of the transcript of all evidentiary proceedings before it. Other parties shall pay the cost of transcripts.
(c) The decision of the department is final unless appealed by a party pursuant to the Administrative Procedures Act."
Appeals are pursuant to Administrative Procedures Act
SECTION 311. Section 20-7-2930 of the 1976 Code is amended to read:
"Section 20-7-2930. Whenever the health or fire safety agency finds upon inspection that a child day care center or group day care home is not complying with the applicable regulations, the appropriate agency shall notify the department. The department shall then request the operator to correct such deficiencies.
a. Every correction notice shall be in writing and shall include a statement of the deficiencies found, the period within which the deficiencies must be corrected and the provision of the subarticle and regulations relied upon. The period shall be reasonable and, except when the appropriate agency finds an emergency dangerous to the health or safety of children, not less than thirty days from the receipt of such notices.
b. Within two weeks of receipt of such notice, the operator of the facility may file a written request with the department for administrative reconsideration of the notice or any portion thereof.
c. The department shall grant or deny a written request and shall notify the operator of action taken.
d. In the event that the operator of the facility fails to correct deficiencies within the period prescribed, the department may suspend the registration of the facility to be effective thirty days after date of notice. An appeal may be taken pursuant to the Administrative Procedures Act."
Appeals procedures revised
SECTION 312. Section 20-7-2940 of the 1976 Code is amended to read:
"Section 20-7-2940. a. When the registration of a facility has been suspended, the operator must be given prompt written notice. The notice must indicate the reasons for the suspension and inform the operator of the right to appeal the decision through administrative channels to the department and according to established appeals procedure for the department.
b. Upon appeal, the decision of the department is final unless appealed by a party pursuant to the Administrative Procedures Act."
Department responsibilities changed to director; obsolete language deleted
SECTION 313. Section 20-7-3050 of the 1976 Code is amended to read:
"Section 20-7-3050. The State Advisory Committee on the Regulation of Child Day Care Facilities shall:
a. Review changes in the regulations and suggested standards proposed by the director or his designee and make recommendations thereon to the director or his designee. The committee shall evaluate the regulations and suggested standards at the three year review period (subsection c. of Section 20-7-2980) and recommend necessary changes. No regulation shall be promulgated if the standard has been disapproved by a simple majority of the committee.
b. Advise the department regarding the improvement of the regulation of child day care facilities.
c. Advise the department on matters of regulatory policy, planning and priorities.
d. As it deems necessary, hold a public hearing at least thirty days prior to adoption of the regulations.
e. Plan with the department for the procedures to be used in notifying licensees, approved operators and registrants regarding regulatory changes sixty days prior to intended promulgation.
f. Maintain through the department the essential liaison with other departments and agencies of state and local government so as to preclude imposition of duplicate requirements upon operators subject to regulations under this subarticle.
g. Act to move the adoption of its recommendations and other pertinent disposition of matters before it by decision of a simple majority of those members present and voting, provided there is a quorum of eight members."
Department of Youth Services changed to Department of Juvenile Justice
SECTION 314. Section 20-7-3100 of the 1976 Code is amended to read:
"Section 20-7-3100. There is hereby created the South Carolina Department of Juvenile Justice, hereinafter referred to as the department."
Department name changed
SECTION 315. Section 20-7-3110 of the 1976 Code is amended to read:
"Section 20-7-3110. Except as otherwise provided in this subarticle, all references to the Department of Juvenile Placement and Aftercare shall mean the Department of Juvenile Justice and all references to the board shall be changed to read the Department of Juvenile Justice."
Board deleted; appointment of director by Governor with advice and consent of the Senate
SECTION 316. Section 20-7-3120 of the 1976 Code is amended to read:
"Section 20-7-3120. The Governor shall appoint a director with the advice and consent of the Senate who shall possess qualifications necessary to manage the affairs of the department. If a vacancy occurs in the office when the Senate is not in session, the Governor may appoint a director to fill the vacancy and such appointee shall be a de facto member until the Senate acts upon the appointment."
Removal of director
SECTION 317. Section 20-7-3130 of the 1976 Code is amended to read:
"Section 20-7-3130. The director shall be subject to removal by the Governor as provided in Section 1-3-240."
Board responsibilities changed to director
SECTION 318. Section 20-7-3170 of the 1976 Code is amended to read:
"Section 20-7-3170. The director shall be vested with the exclusive responsibility for policy of the department to carry out the responsibilities, duties and privileges provided for in this chapter."
Board responsibilities changed to director
SECTION 319. Section 20-7-3180 of the 1976 Code is amended to read:
"Section 20-7-3180. The director must execute a good and sufficient bond payable to the State in the sum of fifty thousand dollars, conditioned for the faithful performance of the duties of his office and the accurate accounting for all monies and property coming into his hands. Such bond shall be executed by a surety company authorized to do business under the laws of this State, and the premium on any such bond shall be paid by the State out of the department's appropriations."
Board responsibilities changed to department and director
SECTION 320. Section 20-7-3190 of the 1976 Code is amended to read:
"Section 20-7-3190. The department may enter into agreements with the governing bodies of other state departments or institutions for the purpose of effecting a more efficient and economical management of any institutions or programs under its supervision. The department is authorized to make contracts and expend public funds as required to carry out the functions prescribed for it in this article within the limits of appropriated funds.
An annual report of the department shall be prepared by the director which shall include an account of all funds received and expended, persons served by the department including a report of the state and conditions of the correctional institutions and community programs operated by the department."
Commissioner changed to department
SECTION 321. Section 20-7-3200 of the 1976 Code is amended to read:
"Section 20-7-3200. The director shall serve as chief executive officer of the department. The director may appoint and employ such officers and employees necessary to perform the duties and responsibilities of the department and shall ensure that the department's organizational structure differentiates between separate divisions, the community-based services and institutional services of the department."
Board responsibilities changed to director
SECTION 322. Section 20-7-3210 of the 1976 Code is amended to read:
"Section 20-7-3210. The department shall provide such community services as the director shall assign to it which shall include, but not be limited to, the following:
(a) Family Court intake screening and referral counseling;
(b) serving, advising and counseling children placed on probation by the Family Court;
(c) serving, advising and counseling of children in the various institutions as may be necessary to the placement of the children in proper environment after release and the placement of children in suitable jobs where necessary and proper;
(d) supervising and guiding of children released or conditionally released from institutions;
(e) counseling children released or conditionally released by the parole board;
(f) coordinating the activities of supporting community agencies which aid in the social adjustment of children released by the parole board;
(g) providing or arranging for necessary services leading to the rehabilitation of delinquents either within the department or through cooperative arrangements with other appropriate agencies;
(h) providing counseling and supervision for any child under twelve years of age who has been adjudicated delinquent, convicted of a crime or has entered a plea of guilty or nolo contendere, when other suitable personnel is not available and upon request of the court concerned;
(i) providing detention screening services when a child is taken into custody for violation of a law or ordinance as provided in subsections (a) and (b) of Section 20-7-600;
(j) providing prevention services to include short and long range planning, establishing statewide priorities and standards, development of public awareness programs, and technical assistance to local government in the development of prevention programs;
(k) providing for the development of secure and nonsecure alternatives to jail;
(l) providing for a variety of community-based programs to augment regular probation services, such as volunteer services, restitution, community work programs, family counseling and contract probation with specific sanctions for various types of behavior;
(m) providing for a variety of community-based programs to serve as alternatives to institutions, such as halfway houses, work release, intensive probation, restitution, forestry and wilderness camps, marine science programs, and other residential and nonresidential programs;
(n) providing for programs to divert juveniles, where proper and appropriate, from the juvenile justice system."
Board responsibilities changed to director
SECTION 323. Section 20-7-3230 of the 1976 Code is amended to read:
"Section 20-7-3230. (A) The department shall provide institutional services which include, but are not limited to:
(1) providing correctional institutional services for juveniles committed under the provisions of Part 3 of this subarticle;
(2) managing, operating, and supervising Birchwood, Willow Lane, John G. Richards, and other facilities as the director may establish;
(3) the establishment and maintenance of residential and nonresidential reception and evaluation centers at which all children committed to its custody by a Circuit or Family Court must be received, examined, and evaluated before assignment to one of its institutions or before other disposition or recommendation is made concerning the child. The commitment of a child to a reception and evaluation center or youth correctional institution of the department may be made only after the child has been adjudicated delinquent. The evaluation conducted by the reception and evaluation centers includes, but is not limited to:
(a) a complete social, physical, psychological, and mental examination;
(b) an investigation and consideration of family and community environment and other facts in the background of the person concerned that might relate to his delinquency;
(c) a determination of the correctional or custodial care that would be most appropriate. The department shall create facilities and employ personnel as will enable the centers to conduct the necessary physical, mental, and psychological examinations required by this section;
(4) providing juvenile detention services for juveniles charged with having committed a criminal offense who are found, after a detention screening or detention hearing, to require detention or placement outside the home pending an adjudication of delinquency or dispositional hearing. Detention services provided by the department for the benefit of the counties of this State must include a secure juvenile detention center. However, this secure juvenile detention center shall cease to be operated as a preadjudicatory juvenile detention center two years after the facility becomes operational unless specifically renewed and reauthorized as a preadjudicatory juvenile detention center by the General Assembly. The size and capacity of this juvenile detention facility must be determined by the department after its consideration and review of recognized national standards for the design, construction, and operation of juvenile detention facilities. These recognized national standards must be met or exceeded by the department in determining the size and capacity of its juvenile detention center and in providing for the construction and operation of the facility. However, the size and capacity of this juvenile detention center may not exceed thirty beds. Upon completion of construction and upon the department's determination that the facility is staffed in accordance with existing standards and, therefore, can be operated in accordance with these standards, the department shall determine and announce the maximum operational capacity of the facility. Before September 2, 1990, the department shall determine and announce the anticipated maximum operational capacity of this facility and shall contact each county governmental body in this State for the purpose of determining which counties anticipate utilizing this facility upon the facility becoming operational. The department shall inform each county governmental body of the existing state and federal laws regarding the confinement of juveniles charged with committing criminal offenses, of each county's ability to develop its own facility or to contract with other counties for the development of a regional facility, of the availability of this facility, and of the per diem and transportation requirements set forth in this section if this facility is to be used by the county. This notice must be provided to each county for the purpose of determining which county governmental bodies desire to enter into an intergovernmental agreement with the department for the detention of juveniles from their particular county who are charged with committing a criminal offense for which pretrial detention is both authorized and appropriate. A juvenile must not be ordered detained by the court in this juvenile detention center nor may the department accept a juvenile into this facility if his detention causes the department to exceed the announced operational capacity. A juvenile ordered detained in this facility must be screened within twenty-four hours by a social worker or, if considered appropriate, by a psychologist, in order to determine whether the juvenile is emotionally disturbed, mentally ill, or otherwise in need of services. The department shall determine an amount of per diem for each child detained in this center, which must be paid by the committing county. The per diem paid by the county may not exceed the daily average cost of a juvenile committed to the department and must be placed in a separate account by the department for operation of this facility.
(B) The reception and evaluation center located in Columbia is designated `The William J. Goldsmith Reception and Evaluation Center'."
Commissioner changed to director
SECTION 324. Section 20-7-3235 of the 1976 Code is amended to read:
"Section 20-7-3235. Juvenile correctional employees of the department, while performing their officially assigned duties relating to the custody, control, transportation, or recapture of a juvenile offender within the jurisdiction of the department, and other employees of the department authorized by the director to perform similar functions as part of their official duties, have the status of peace officers anywhere in this State in a matter relating to the custody, control, transportation, or recapture of the juvenile. Employees of the department's Division of Public Safety, on proper training and certification from the Criminal Justice Academy, and after having taken the oath of office prescribed by law and the Constitution of this State, must continue to be commissioned as state constables pursuant to Section 23-1-60."
Department name changed; board responsibilities changed to director and department
SECTION 325. Section 20-7-3240 of the 1976 Code is amended to read:
"Section 20-7-3240. The Department of Juvenile Justice is designated as a special school district which shall operate a continuous progress education program on a twelve-month basis. There is created within the Department the Education Division which shall provide academic and vocational training at the Reception and Evaluation Center, Birchwood High School, Willow Lane Junior High School and all other institutions operating under the department. Academic and vocational training provided pursuant to this section shall meet all educational standards prescribed by law and by the Department of Education for public schools of the State including, but not limited to, compliance with and operation under the provisions of the Education Finance Act, the Defined Minimum Program, teacher and superintendent certification laws and regulations, and other laws or regulations governing the education of children. The department may prescribe such additional requirements as it may from time to time deem necessary.
The State Superintendent of Education shall administer the standards related to the school programs. Reports from the Department of Education evaluating the educational program at all juvenile corrections institutions and indicating whether or not the program meets the standards as prescribed, shall be made directly to the director. Such Department of Education supervisory personnel as deemed appropriate shall be utilized for evaluating the programs and for reporting to the director.
Schools operated by the department shall receive funds from the Department of Education under the same provisions as other public schools in the State.
The director shall operate as the trustee for schools under the department's jurisdiction for all administrative purposes, including the receipt and expenditure of funds appropriated or granted to the schools for any purpose. The director shall employ a full-time superintendent of schools for the special school district. The superintendent shall hold a valid superintendent's certificate from the Department of Education and shall serve as the head of the Education Division.
In lieu of classification by the Division of State Personnel, the employment status of the superintendent of schools for the department and all instructional personnel operating under the Education Division of the department shall be governed by the laws of the State regarding employment of instructional personnel and regulations of the Department of Education."
Board responsibilities changed to department and director
SECTION 326. Section 20-7-3270 of the 1976 Code is amended to read:
"Section 20-7-3270. The department is authorized to charge and collect fees for evaluation and treatment services provided for any person referred or temporarily committed to its facilities either at the evaluation center in Columbia or any center or other facility of the department. Fees may be charged to a parent or guardian or to the public or private agency responsible for the temporary commitment or referral. In cases where insurance coverage is available, fees of treatment or evaluation may be charged to the insurer. No fees shall be charged to any person who is finally committed to a custodial facility of the department and no person shall be denied treatment or evaluation services because of inability to pay for such services.
The director shall approve a schedule of maximum charges for the various services of the department, including residential care, and shall review the schedule from time to time. The department shall adopt procedures to determine ability to pay and may authorize its designees to reduce or waive charges based upon their findings.
No charge for services rendered by the department may exceed the actual cost of such services at the facility rendering such services.
The department shall establish a hearing and review procedure so that parents or legal guardians of a person under the department's jurisdiction may appeal charges made for services or may present to the departmental officials information or evidence which, in their opinion, needs to be considered in establishing charges.
The department may utilize all legal procedures to collect lawful claims. All funds collected pursuant to this section shall be deposited with the State Treasurer for use of the department in defraying the cost of services for which such fees may be collected."
Board responsibilities changed to director
SECTION 327. Section 20-7-3280 of the 1976 Code is amended to read:
"Section 20-7-3280. The director is authorized to sell mature trees, other timber and farm products and commodities from lands owned by the department. Prior to the sale of timber, the director shall consult with the State Forester to determine the economic feasibility of and obtain approval for such sales. Funds derived from such sales shall be credited to the account of the department to be used for capital improvements subject to the approval of the Budget and Control Board."
Department name changed
SECTION 328. Section 20-7-3300 of the 1976 Code is amended to read:
"Section 20-7-3300. Records and information of the department pertaining to juveniles shall be confidential as provided in Section 20-7-780; provided, however, that where necessary and appropriate to ensure the provision and coordination of services and assistance to a juvenile under the custody or supervision of the department, the director must establish policies by which the department may transmit such information and records to another department, agency, or school district of state or local government, or private institution or facility licensed by the State as a child serving organization, where such is required for admission or enrollment of the juvenile into a program of services, treatment, training, or education. Records and information provided to a public or private school by the Department of Juvenile Justice must include in the case of an individual who has been adjudicated for having committed a violent crime, as defined in Section 16-1-60 and committed to the Department of Juvenile Justice, a copy of, and, if requested, information pertaining to that person's juvenile criminal record. The person's juvenile criminal record must be provided by the Department of Juvenile Justice to the principal of the school which the juvenile is eligible to attend immediately upon the person's release from the Department of Juvenile Justice. Each school district is responsible for developing a policy for schools to follow within the district which ensures that the confidential nature of these records and of the other information received is maintained. This policy must include at a minimum the retention of the juvenile's criminal record, and other information relating to his criminal record, in the juvenile's school disciplinary file, or in some other confidential location, restricting access to the file and to its contents to school personnel as deemed necessary and appropriate to meet and adequately address the educational needs of the juvenile and for the destruction of these records upon the juvenile's completion of secondary school, or upon reaching twenty-one years of age."
Board responsibilities given to department
SECTION 329. Section 20-7-3310 of the 1976 Code is amended to read:
"Section 20-7-3310. No person shall be committed to an institution under the control of the department who is seriously handicapped by mental illness or retardation. If, after a person is referred to the Reception and Evaluation Center, it shall be determined that he is mentally ill, as defined in Section 44-23-10, or mentally retarded to an extent that he could not be properly cared for in its custody, the department may institute necessary legal action to accomplish the transfer of such person to such other state institution as in its judgment is best qualified to care for him in accordance with the laws of this State. Such legal actions shall be brought in the resident county of the subject person. The department shall establish standards with regard to the physical and mental health of persons which it can accept for commitment."
Juvenile Parole Board created under department; obsolete language deleted
SECTION 330. Section 20-7-3350 of the 1976 Code is amended to read:
"Section 20-7-3350. There is hereby created under the Department of Juvenile Justice the Board of Juvenile Parole, hereinafter referred to as the parole board. The parole board shall be composed of ten members appointed by the Governor with the advice and consent of the Senate. Of these members, one shall be appointed from each of the six congressional districts and four members shall be appointed from the State at large. If a vacancy occurs on the parole board when the Senate is not in session, the Governor may appoint a member to fill the vacancy and such appointee shall be a de facto member until the Senate acts upon the appointment.
Terms of office for the members of the parole board shall be for four years and until their successors are appointed and qualify; provided, however, that of the initial appointments, the Governor shall designate two of such members whose appointments shall be for one year, two for a term of two years, three for a term of three years, and three for a term of four years. Thereafter, appointments shall be made by the Governor in the manner provided for above for terms of four years, such terms to expire on June thirtieth of the appropriate year.
No member shall be reappointed to the parole board until two years after the expiration of a full four-year term."
Removal of board member
SECTION 331. Section 20-7-3360 of the 1976 Code is amended to read:
"Section 20-7-3360. A member of the parole board shall be subject to removal by the Governor as provided in Section 1-3-240(C)."
Commissioner and department name changes
SECTION 332. Section 20-7-5420(A) of the 1976 Code is amended to read:
"(A) The State Council on Maternal, Infant, and Child Health shall consist of the following members:
(1) the Director of the South Carolina Department of Health and Environmental Control; the State Superintendent of Education or his designee; the State Director of Social Services; Director of the South Carolina Department of Alcohol and Other Drug Abuse Services; the State Director of Mental Health; the State Director of the Department of Disabilities and Special Needs; the Director of the Department of Health and Human Services; the Commissioner of the South Carolina Commission for the Blind; and the Chairman of the Statewide Health Coordinating Council; and
(2) a member of the Health Care Planning and Oversight Committee, to be appointed by the chairman; and a member of the Joint Legislative Committee on Children, to be appointed by the chairman.
The Governor shall appoint one representative of each of the following organizations as a member of the council: South Carolina Medical Association; South Carolina Chapter of the American Academy of Pediatrics; South Carolina Chapter of the American College of Obstetrics and Gynecology; South Carolina Chapter of the Academy of Family Practice; South Carolina Hospital Association; Medical University of South Carolina; University of South Carolina School of Medicine; Clemson University Extension Service; South Carolina Congress of Parents and Teachers; Developmental Disabilities Council; South Carolina March of Dimes; South Carolina Nurses Association; and South Carolina Perinatal Association.
The Governor shall appoint one member from each of the six congressional districts of the State who represents business, civic, community, and religious groups.
The Governor may appoint other ex officio members to the council as are needed to provide information to assist in the work of the council."
Continuum of Care established as a Division in Governor's Office
SECTION 333. Section 20-7-5610 of the 1976 Code is amended to read:
"Section 20-7-5610. It is the purpose of this article to develop and enhance the delivery of services to severely emotionally disturbed children and youth and to ensure that the special needs of this population are met appropriately to the extent possible within this State. To achieve this objective, the Continuum of Care for Emotionally Disturbed Children Division is established in the office of the Governor. This article supplements and does not supplant existing services provided to this population."
Board responsibilities changed to division; department name changes
SECTION 334. Section 20-7-5630 of the 1976 Code is amended to read:
"Section 20-7-5630. (A) The Continuum of Care Division must be supported by an advisory council knowledgeable in services to emotionally disturbed children and includes:
(1) the chairman of the Joint Legislative Committee on Children or his designee;
(2) the chairman of the Joint Committee on Mental Health and Mental Retardation or his designee;
(3) one representative from each of the following agencies:
(a) Department of Health and Human Services;
(b) Department of Mental Health;
(c) Department of Disabilities and Special Needs;
(d) Department of Juvenile Justice;
(e) State Department of Education;
(f) South Carolina School for the Deaf and Blind;
(g) John De La Howe School;
(h) Wil Lou Gray Opportunity School;
(i) State Agency of Vocational Rehabilitation;
(j) Division for Review of the Foster Care of Children in the Governor's Office;
(k) Department of Health and Environmental Control;
(l) Department of Social Services.
(4) a representative appointed by the Governor from a:
(a) child advocacy group;
(b) licensed, practicing child psychiatrist;
(c) credentialed, practicing child psychologist;
(d) parent of a child currently receiving services from the Continuum of Care;
(e) designee of the Governor;
(f) private provider of services for severely emotionally disturbed children.
(B) The term of office for members appointed by the Governor in item (4) of subsection (A) is four years and until their successors are appointed and qualify. The appointments must be made with the advice and consent of the Senate. The terms expire on June thirtieth of the appropriate year. A vacancy must be filled by the Governor for the remainder of the unexpired term, with the advice and consent of the Senate.
(C) The advisory council shall elect from its members a chairman for a term of two years. The advisory council shall meet at least quarterly or more frequently upon the call of the chairman. Members of the advisory council not employed by the State or its political subdivisions shall receive per diem, subsistence, and mileage as provided by law for members of state boards, commissions, and committees while engaged in the work of the council."
Governor to employ director; removal procedures; division authorized to promulgate regulations
SECTION 335. Section 20-7-5660 of the 1976 Code is amended to read:
"Section 20-7-5660. The Governor may employ a director to serve at his pleasure who is subject to removal pursuant to the provisions of Section 1-3-240. The director shall employ staff necessary to carry out the provisions of this article. The funds for the director, staff, and other purposes of the Continuum of Care Division must be provided in the annual general appropriations act. The division shall promulgate regulations in accordance with this article and the provisions of the Administrative Procedures Act and formulate necessary policies and procedures of administration and operation to carry out effectively the objectives of this article."
Board responsibilities changed to division
SECTION 336. Section 20-7-5670 of the 1976 Code is amended to read:
"Section 20-7-5670. The Continuum of Care Division shall submit an annual report to the Governor and General Assembly on its activities and recommendations for changes and improvements in the delivery of services by public agencies serving children."
Suspension on removal of magistrate
SECTION 337. Section 22-1-30 of the 1976 Code is amended to read:
"Section 22-1-30. A magistrate may be suspended or removed by order of the Supreme Court pursuant to its rules for incapacity, misconduct, or neglect of duty."
Employment and term of SLED Chief
SECTION 338. Section 23-3-10 of the 1976 Code is amended to read:
"Section 23-3-10. There is created the South Carolina Law Enforcement Division (SLED). The division must be headed by a chief appointed by the Governor with the advice and consent of the Senate and shall hold office until his successor is appointed and qualified. The term of the chief is six years. On the effective date of the provisions of this section providing for a six-year term for the chief, a successor to the chief serving on this date must be appointed as provided herein. Nothing herein prevents the chief serving on this date from being reappointed to additional six-year terms. The chief may only be removed pursuant to the provisions of Section 1-3-240 of the 1976 Code. The agents and officers of the division must be commissioned by the Governor upon the recommendation of the chief. The agents and officers shall have that rank or title as may be provided under the State Employees Classification System. The chief may appoint other personnel considered necessary and as provided for in the annual appropriations act. All agents and officers commissioned by the Governor are subject to discharge for cause which must be subject to review as is now provided by law for other state employees."
Additional functions of SLED
SECTION 339. Chapter 3 of Title 23 of the 1976 Code is amended by adding:
"Section 23-3-15. (A) In addition to those authorities and responsibilities set forth in this chapter, the South Carolina Law Enforcement Division shall have specific and exclusive jurisdiction and authority statewide, on behalf of the State, in matters including but not limited to the following functions and activities:
(1) the investigation of organized criminal activities or combined state-federal interstate criminal activities, all general criminal investigations, arson investigation and emergency event management pertaining to explosive devices;
(2) the maintenance and operation of a statewide comprehensive forensic sciences laboratory;
(3) covert investigation of illegal activities pertaining to and the interdiction of narcotics and other illicit substances;
(4) operation and maintenance of a central, statewide criminal justice data base and data communication system;
(5) establishment and operation of highly specialized, rapid response law enforcement units within the division;
(6) operation and regulation of state polygraph examination services;
(7) law enforcement, regulation enforcement, and inspections under Title 61; and
(8) such other activities as are not inconsistent with the mission of the division or otherwise proscribed by law.
(B) No other state agency or department having personnel who are commissioned law enforcement officers may engage in any of the activities herein set forth without the express permission of the Chief of the South Carolina Law Enforcement Division. Any state agencies or departments having commissioned law enforcement personnel shall assist the South Carolina Law Enforcement Division at any time the Chief of SLED requests assistance in carrying out the statutory duties of the division.
(C) The South Carolina Law Enforcement Division is responsible for the enforcement of all criminal laws, misdemeanors, and felonies, and civil laws, the violation of which may result in a fine or other penalty being assessed against the violator, which laws are now enforced by law enforcement personnel employed by and under the jurisdiction of the Alcoholic Beverage Control Commission. These civil and criminal laws also include regulations and ordinances pertinent thereto. The duties, functions, and powers of these law enforcement personnel are devolved upon the South Carolina Law Enforcement Division and the law enforcement personnel of this agency on the effective date of this section shall perform their duties and functions under the auspices of the division and shall become a part of the South Carolina Law Enforcement Division in the manner provided by law."
Bonds of officers and agents
SECTION 340. Section 23-3-20 of the 1976 Code is amended to read:
"Section 23-3-20. Every officer and agent commissioned pursuant to this article shall file a bond, or be covered by a surety bond, of not less than two thousand dollars with the South Carolina Law Enforcement Division, subscribed by a licensed surety company, conditioned for the faithful performance of his duties, for the prompt and proper accounting of all funds coming into his hands, and for the payment of a judgment recovered against him in a court of competent jurisdiction upon a cause of action arising out of breach or abuse of official duty or power and for the payment of damages sustained by a member of the public from an unlawful act of the officer or agent. However, coverage under the bond does not include damage to persons or property arising out of the negligent operation of a motor vehicle. The bond may be individual, schedule, or blanket and on a form approved by the Attorney General. The premiums on the bonds must be paid by the division.
All officers and agents of the division shall take and subscribe to the oath provided by law for peace officers."
Assignment of personnel
SECTION 341. Section 23-3-25 of the 1976 Code is amended by adding:
"Section 23-3-25. The Chief of the South Carolina Law Enforcement Division may assign personnel of the division to particular areas of enforcement as appropriate for the enforcement of the laws and regulations of this State which the South Carolina Law Enforcement Division is charged with enforcing. For this purpose, the chief may establish divisions within the department to carry out particular duties as assigned by the chief."
Reference deleted
SECTION 342. Section 23-3-160 of the 1976 Code is amended to read:
"Section 23-3-160. In any accident involving injury or death of a person under the age of twenty-one, where there is cause to believe that any beverage containing alcohol was consumed prior to the accident by the person under twenty-one, the law enforcement agency having jurisdiction to investigate the accident shall commence a detailed investigation to determine the circumstances under which the beverage was obtained.
Upon initiation of this investigation by the local investigating law enforcement agency, the South Carolina Law Enforcement Division shall assist in whatever capacity necessary to fully complete the inquiry and shall cooperate and assist in the prosecution of appropriate criminal charges against any person who provided a beverage containing alcohol to the person under twenty-one."
Department of Public Safety
SECTION 343. (A) Title 23 of the 1976 Code is amended by adding:
"CHAPTER 6
Department of Public Safety
Article 1
General Provisions
Section 23-6-10. For the purposes of this title, the following words, phrases, and terms are defined as follows:
(1) `Department' means the Department of Public Safety.
(2) `Director' means the chief administrative officer of the Department of Public Safety.
(3) `Deputy director' means the administrative head of a division of the department.
Section 23-6-20. (A) The Department of Public Safety is established as an administrative agency of state government which is comprised of a Motor Vehicle Records and Vehicle Inspection Division, a South Carolina Highway Patrol Division, a South Carolina State Police Division, a Division of Public Safety, and a Division of Training and Continuing Education.
(B) The functions, powers, duties, responsibilities, and authority statutorily exercised by the following offices, sections, departments, or divisions of the following state agencies as existing on the effective date of this act are transferred to and devolved on the department to include the South Carolina Highway Patrol, the Drivers Training Schools within the Department of Licensing of the Division of Motor Vehicles, the Driver Records Section within the Division of Motor Vehicles, the Financial Responsibility Section within the Division of Motor Vehicles, the Reciprocity Office of the Registration and Reciprocity Section within the Division of Motor Vehicles, the Vehicle Inspection Section within the Division of Motor Vehicles, the Administrative Services Section of the Division of Motor Vehicles and the Safety Office Section of the Division of Finance and Administration of the South Carolina Department of Highways and Public Transportation; the Safety Enforcement Officers of the Office of Enforcement within the Transportation Division of the South Carolina Public Service Commission, and the Governor's Office of Public Safety, together with all assets, liabilities, records, property, personnel, unexpended appropriations, and other funds shall be transferred to the control of the Department of Public Safety. All rules, regulations, standards, orders, or other actions of these entities shall remain in effect unless specifically changed or voided by the department in accordance with the Administrative Procedures Act, or otherwise provided.
Section 23-6-30. The department shall have the following duties and powers:
(1) carry out highway and other related safety programs;
(2) license suspensions and revocations, including related administrative hearings;
(3) maintain an automated system for the storage and retrieval of drivers licensing records;
(4) engage in driver training and safety activities; (5) enforce the traffic, motor vehicle, commercial vehicle and related laws;
(6) enforce size, weight and safety enforcement statutes relating to commercial motor vehicles;
(7) operate a comprehensive law enforcement personnel training program;
(8) promulgate such rules and regulations in accordance with the Administrative Procedures Act and Article 7 of this chapter for the administration and enforcement of the powers delegated to the department by law, which shall have the full force and effect of law;
(9) operate such programs and disseminate information and material so as to continually improve highway safety;
(10) disperse any grant funds made available to the department for purposes and in the manner provided for in this chapter; and
(11) do all other functions and responsibilities as required or provided for by law.
Section 23-6-40. (A) The Governor, with the advice and consent of the Senate, shall appoint the director of the department who shall serve a term of four years. The director may only be removed pursuant to the provisions of Section 1-3-240(C). He shall receive such compensation as may be established under the provisions of Section 8-11-160 and for which funds have been authorized in the annual general appropriation act. The term of office for the first appointment under the provisions of this section shall be February 1, 1994 for a term of two years. The Governor shall submit the name of his appointee to the Senate by December first of the year prior to the date on which the term begins. A person appointed by the Governor with the advice and consent of the Senate to fill a vacancy shall serve for the unexpired term only. This shall not prohibit the Governor from reappointing a person who is appointed to fill a vacancy as director of the department. All subsequent appointments shall be made in the manner of the original appointment for a term of four years.
(B) The director must administer the affairs of the department and must represent the department in its dealings with other state agencies, local governments, special purpose districts, and the federal government. The director must appoint a deputy director for each division and employ such other personnel for each division and prescribe their duties, powers, and functions as he considers necessary and as may be authorized by statute and for which funds have been authorized in the annual general appropriation act.
(C) The deputy director for each division shall serve at the pleasure of the director. Each deputy director may receive compensation as established under the provisions of Section 8-11-160 and for which funds have been authorized in the annual general appropriation act.
Section 23-6-50. The director shall annually cause the department to be audited. The audit must be conducted by a certified public accountant or firm of certified public accountants to be selected by the State Auditor. The designated accountant or firm of accountants shall issue audited financial statements in accordance with generally accepted accounting principles, and such financial statements shall be made available annually by October fifteenth to the General Assembly. The costs and expenses of the audit must be paid by the department out of its funds.
Article 3
Highway Patrol Division
Section 23-6-100. (A) There is created a South Carolina Highway Patrol Division and a South Carolina State Police Division within the Department of Public Safety. The South Carolina Highway Patrol Division shall have such troopers, officers, agents and employees as the department may deem necessary and proper for the enforcement of the traffic and other related laws, and the South Carolina State Police Division shall have such troopers, officers, agents and employees as the department may deem necessary and proper for the enforcement of the commercial motor carrier related laws, the enforcement of which is devolved upon the department. Such officers and troopers shall be commissioned by the Governor upon the recommendation of the Director of the Department of Public Safety. Such commissions may be terminated at the pleasure of the director.
(B) The department must provide the officers of the Highway Patrol and of the State Police with distinctive uniforms and suitable arms and equipment for use in the performance of their duties. Such officers and troopers shall at all times, when in the performance of their duties, wear complete uniforms with badges conspicuously displayed on the outside of their uniforms.
(C) The commanding officers of the South Carolina Highway Patrol and the South Carolina State Police respectively, with the approval of the director of the department, shall prescribe a unique and distinctive official uniform, with appropriate insignia to be worn by all officers when on duty and at such other times as the director shall order, and a distinctive color or colors and appropriate emblems for all motor vehicles used by the Highway Patrol and the State Police except those designated by the director. No other law enforcement agency, private security agency, or any person shall wear a similar uniform and insignia which may be confused with the uniform and insignia of the Highway Patrol or State Police. An emblem must not be used on a nondepartment motor vehicle, nor may such vehicle be painted in a color or in any manner which would cause the vehicle to be similar to a Highway Patrol or State Police vehicle or readily confused with it.
(D) The director shall file with the Secretary of State and Legislative Council for publication in the State Register a description and illustration of the official highway patrol uniform with insignia and the emblems of the official highway patrol and motor vehicles including a description of the color of such uniforms and vehicles and a description and illustration of the official state police uniform with insignia and the emblems of the official state police and motor vehicles including a description of the color of such uniforms and vehicles.
Section 23-6-110. In order to carry out the provisions of Section 23-6-100 in an orderly and economical manner it is intended that all serviceable uniforms be continued in use until such time as the director considers it necessary for them to be replaced. These provisions shall also apply to the emblems for motor vehicles.
Section 23-6-120. Every officer and trooper commissioned pursuant to this chapter shall file a bond, or be covered by a surety bond, with the department in the amount of not less than two thousand dollars, subscribed by a duly licensed surety company, which shall be conditioned on the faithful performance of his duties. The duties include but are not limited to the prompt and proper accounting of all funds coming into his hands, the payment of any judgment recovered against him in any court of competent jurisdiction upon a cause of action arising out of breach or abuse of official duty or power, or the payment of damages sustained by any member of the public from any unlawful act of such officer or trooper. Coverage under such bond shall not include damage to persons or property arising out of the negligent operation of a motor vehicle. Such bond may be individual, schedule or blanket and on a form approved by the Attorney General. The premiums on such bonds shall be paid by the department.
Section 23-6-130. Any violation of Section 23-6-100 may be enjoined by the court of common pleas upon petition of the director after due notice to the person violating the provisions of Section 23-6-100 and after a hearing on the petition.
Section 23-6-140. The patrol of the highways of the State and the enforcement of the laws of the State relative to highway traffic, traffic safety, and motor vehicles shall be the primary responsibility of the troopers and officers of the South Carolina Highway Patrol. The troopers and officers of the State Police shall have the primary responsibility for the enforcement of laws relating to commercial motor carriers relating to size, weight, permits, licensing, and inspections for size and weight tolerance and safety. All officers and troopers shall have the same power to serve criminal processes against offenders as sheriffs of the various counties and also the same power as such sheriffs to arrest without warrants and to detain persons found violating or attempting to violate any laws of the State relative to highway traffic, motor vehicles or commercial motor carriers. These officers and troopers shall also have the same power and authority held by deputy sheriffs for the enforcement of the criminal laws of the State.
Section 23-6-150. When any person is apprehended by a officer upon a charge of violating any laws of the State relative to highway traffic, motor vehicles or commercial motor carriers such person shall immediately be served with an official summons. The person charged may deposit bail with the arresting officer in lieu of being immediately brought before the proper magistrate, recorder, or other judicial officer to enter into a formal recognizance or make direct the deposit of a proper sum of money in lieu of a recognizance or incarceration. The apprehending officer may accept a sum of money as bail, not less than the minimum nor more than the maximum fine, but in no case to exceed two hundred dollars, to be in due course turned over to the judicial officer as money for bail. The bail deposited shall be in lieu of entering into a recognizance for his appearance for trial as set in the aforesaid summons or being incarcerated by the arresting officer and held for further action by the appropriate judicial officer. A receipt for the sum so deposited shall be given to such person by the arresting officer. The summons duly served as herein provided shall give the judicial officer jurisdiction to dispose of the matter. Upon receipt of the fixed sum of money the officer may release the person so charged as above provided for his further appearance before the proper judicial officer as provided for and required by the summons.
Section 23-6-170. No officer or trooper may be promoted to a higher rank until such time as the council adopts a promotion policy for commissioned personnel and officers as provided for in Section 23-6-520.
Article 5
Division of Public Safety
Section 23-6-200. There is created a Division of Public Safety for the development and implementation of safety-related programs. The primary goal of the division is to increase public awareness of safety issues. The goal of the division is to be measured by the collection, recording and maintenance of such statistical information as is necessary to determine the number and type of accidents, fatalities, driving under the influence (DUI) arrests and convictions, and compliance with posted speed limits and the annual increase or decrease thereof. The division shall coordinate the highway safety activities of the various agencies of the state and local governments, including evaluating and making recommendations to the director with respect to grant proposals and other programs submitted by state agencies and political subdivisions for federal and state funds in conjunction with the federal highway program. The division shall maintain current statistical information on motor vehicle accidents, injuries and deaths and their related causation factors, and shall publish this information annually, including any other public safety related information that the division may determine appropriate."
Article 7
Division of Motor Vehicle Records
and Vehicle Inspections
Section 23-6-300. There is created a Division of Motor Vehicle Records and Vehicle Inspections. The division shall be responsible for all of those functions, duties and responsibilities exercised by and/or operating under the Motor Vehicle Inspection section, Financial Responsibility section, the Reciprocity Office of the Registration and Reciprocity section, and the Administrative Services section of the Department of Motor Vehicles, including all hearing officers of the Division of Motor Vehicles of the South Carolina Department of Highways and Public Transportation.
Article 9
Division of Training and Continuing Education
Section 23-6-400. (A) There is created a Division of Training and Continuing Education to operate a training program for law enforcement officers and other persons employed in the criminal justice system in this State and to establish and maintain minimum standards in law enforcement selection and training.
(B) It is the intent of this article to encourage all law enforcement officers, departments, and agencies within this State to adopt standards which are higher than the minimum standards implemented pursuant to this article, and these minimum standards in no way may be considered sufficient or adequate in those cases where higher standards have been adopted or proposed. Nothing herein may be construed to preclude an employing agency from establishing qualifications and standards for hiring or training law enforcement officers which exceed the minimum standards set by the council, hereinafter created, nor, unless specifically stated, may anything herein be construed to affect any sheriff, constable, or other law enforcement officer elected under the provisions of the Constitution of this State.
(C) It is the intent of the General Assembly in creating a facility and a governing council to maximize training opportunities for law enforcement officers and criminal justice personnel, to coordinate training, and to set standards for the law enforcement and criminal justice service, all of which are imperative to upgrading law enforcement to professional status.
(D) Whenever used in this article, and for the purposes of this article, unless the context clearly denotes otherwise:
(1) `Law enforcement officer' means an appointed officer or employee hired by and regularly on the payroll of the State or any of its political subdivisions, who is granted statutory authority to enforce all or some of the criminal, traffic, and penal laws of the State and who possesses, with respect to those laws, the power to effect arrests for offenses committed or alleged to have been committed.
(2) `Council' means the Law Enforcement Training Council created by this article.
Section 23-6-410. The division must establish and maintain a central training facility which must be located near the geographical and population center of the State, and which shall provide facilities and training for all officers from state, county, and local law enforcement agencies and for other designated persons in the criminal justice system; provided, that correctional officers and other personnel employed or appointed by the South Carolina Department of Corrections may be trained by the department. The Deputy Director of the Division of Training and Continuing Education is responsible for selection of instructors, course content, maintenance of physical facilities, recordkeeping, supervision of personnel, scheduling of classes, enforcement of minimum standards for certification, and other matters as may be recommended by the council and approved by the Director of the Department of Public Safety.
Section 23-6-420. (A) There is created a South Carolina Law Enforcement Training Council consisting of fourteen:
(1) the Attorney General of South Carolina;
(2) the Chief of the South Carolina Law Enforcement Division;
(3) the Commanding Officer of the South Carolina Highway Patrol;
(4) the Commanding Officer of the South Carolina State Police;
(5) the Commanding Officer of the State Natural Resources Police;
(6) the Director of the Department of Corrections;
(7) the Dean of the University of South Carolina School of Law;
(8) one chief of police from a municipality having a population of less than ten thousand; this person to be appointed by the Governor for a term of four years;
(9) one chief of police from a municipality having a population of more than ten thousand; this person to be appointed by the Governor for a term of four years;
(10) one county sheriff engaged in full-time performance of duties as a law enforcement officer; this person to be appointed by the Governor for a term of four years;
(11) one person employed in the administration of any municipality or holding a municipal elective office; this person to be appointed by the Governor for a term of four years;
(12) one person employed in the administration of county government or elected to a county governing body; this person to be appointed by the Governor for a term of four years;
(13) the special agent in charge of the Federal Bureau of Investigation, Columbia Division;
(14) the Director of the Department of Public Safety.
(B)(1) The members provided for in (1) through (6) above are ex officio members with full voting rights.
(2) The members provided for in (7) through (11) above shall serve terms as herein provided. In the event that a vacancy arises it must be filled for the remainder of the term in the manner of the original appointment or designation.
(C) This council shall elect one of its members as chairman and one as vice-chairman; these shall serve a term of one year in this capacity and may be re-elected. The council shall meet at the call of the chairman or at the call of a majority of the members of the council, but no fewer than four times each year. The council shall establish its own procedures with respect to quorum, place, and conduct of meetings.
(D) Members of the council shall serve without compensation.
(E) A council member who terminates his holding of the office or employment which qualified him for appointment shall cease immediately to be a member of the council; the person appointed to fill the vacancy shall do so for the unexpired term of the member whom he succeeds.
Section 23-6-430. No law enforcement officer employed or appointed on or after July 1, 1989, by any public law enforcement agency in this State is authorized to enforce the laws or ordinances of this State or any political subdivision thereof unless he has been certified as qualified by the council, except that any public law enforcement agency in this State may appoint or employ as a law enforcement officer, a person who is not certified if, within one year after the date of employment or appointment, the person secures certification from the council; provided, that if any public law enforcement agency employs or appoints as a law enforcement officer a person who is not certified, the person shall not perform any of the duties of a law enforcement officer involving the control or direction of members of the public or exercising the power of arrest until he has successfully completed a firearms qualification program approved by the council; and provided, further, that within three working days of employment the council must be notified by a public law enforcement agency that a person has been employed by that agency as a law enforcement officer, and within three working days of the notice the firearms qualification program as approved by the council must be provided to the newly hired personnel. If the firearms qualification program approved by the council is not available within three working days after receipt of the notice, then the public law enforcement agency making the request for the firearms qualification program may employ the person to perform any of the duties of a law enforcement officer, including those involving the control and direction of members of the public and exercising the powers of arrest. Should any such person fail to secure certification within one year from his date of employment, he may not perform any of the duties of a law enforcement officer involving control or direction of members of the public or exercising the power of arrest until he has been certified. He is not eligible for employment or appointment by any other agency in South Carolina as a law enforcement officer, nor is he eligible for any compensation by any law enforcement agency for services performed as an officer. Exceptions to the one-year rule may be granted by the council in these cases:
(a) military leave or injury occurring during that first year which would preclude the receiving of training within the usual period of time; or
(b) in the event of the timely filing of application for training, which application, under circumstances of time and physical limitations, cannot be honored by the training academy within the prescribed period; or
(c) upon presentation of documentary evidence that the officer-candidate has successfully completed equivalent training in one of the other states which by law regulate and supervise the quality of police training and which require a minimum basic or recruit course of duration and content at least equivalent to that provided in this article or by standards set by the South Carolina Law Enforcement Training Council.
Section 23-6-440. (A) At the request of any public law enforcement agency of this State the council is hereby authorized to issue certificates and other appropriate indicia of compliance and qualification to law enforcement officers or other persons trained under the provisions of this article. Members of the council may individually or collectively visit and inspect any training school, class, or academy dealing with present or prospective law enforcement officers, and are expected to promote the most efficient and economical program for police training, including the maximum utilization of existing facilities and programs for the purpose of avoiding duplication. The council may, at the request of the director, make recommendations to the General Assembly or to the Governor regarding the carrying out of the purposes, objectives, and intentions of this article or other acts relating to training in law enforcement.
(B) All city and county police departments, sheriffs' offices, state agencies, or other employers of law enforcement officers having such officers as candidates for certification shall submit to the council, for its confidential information and subsequent safekeeping, the following:
(1) an application under oath on a format prescribed by council;
(2) evidence satisfactory to the council that the candidate has completed high school and received a high school diploma, equivalency certificate (military or other) recognized and accepted by the South Carolina Department of Education or South Carolina special certificate;
(3) evidence satisfactory to council of the candidate's physical fitness to fulfill the duties of a law enforcement officer including:
(a) a copy of his medical history compiled by a licensed physician or medical examiner approved by the employer;
(b) a certificate of a licensed physician that the candidate has recently undergone a complete medical examination and the results thereof;
(4) evidence satisfactory to the council that applicant has not been convicted of any criminal offense that carries a sentence of one year or more or of any criminal offense that involves moral turpitude. Forfeiture of bond, a guilty plea, or a plea of nolo contendere is considered the equivalent of a conviction;
(5) evidence satisfactory to council that the candidate is a person of good character. This evidence must include, but is not limited to:
(a) certification by the candidate's employer that a background investigation has been conducted and the employer is of the opinion that the candidate is of good character;
(b) evidence satisfactory to council that the candidate holds a valid current South Carolina driver's license with no record during the previous five years for suspension of driver's license as a result of driving under the influence of alcoholic beverages or dangerous drugs, driving while impaired (or the equivalent), reckless homicide, involuntary manslaughter, or leaving the scene of an accident. Candidates for certification as Class II-SCO (Department of Corrections) in any county with a prison system that borders another State may hold a valid current driver's license issued by any jurisdiction of the United States;
(c) evidence satisfactory to council that a local credit check has been made with favorable results;
(d) evidence satisfactory to council that candidate's fingerprint record as received from the Federal Bureau of Investigation and South Carolina Law Enforcement Division indicates no record of felony convictions. In the council's determination of good character, council shall give consideration to all law violations, including traffic and conservation law convictions as indicating a lack of good character. The council shall also give consideration to the candidate's prior history, if any, of alcohol and drug abuse in arriving at its determination of good character;
(6) a copy of candidate's photograph;
(7) a copy of candidate's fingerprints;
(8) evidence satisfactory to council that the candidate's present age is not less than twenty-one years. This evidence must include a birth certificate or another acceptable document;
(9) evidence satisfactory to council of successful completion of a course of law enforcement training as established and approved by the council, and conducted at an academy or institution approved by the council, this evidence to consist of a certificate granted by the approved institution.
(C) A certificate as a law enforcement officer issued by council will either expire three years from the date of issuance or upon discontinuance of employment by the officer with the employing entity or agency. The certification of any law enforcement officer issued by the council that is current on July 1, 1989 will expire in the year 1992 on the last day of the month during which it was issued, or upon discontinuance of employment with the employing entity or agency. Prior to the expiration of the certificate, the certificate may be renewed upon application presented to the council on a form prescribed by council. The application for renewal must be received by council at least forty-five days prior to the expiration of the certificate. If the officer's certificate has lapsed, council may reissue the certificate after receipt of an application and if council is satisfied that the officer continues to meet the requirements of subsections (B)(1) through (B)(9).
(D) Council may accept for training as a law enforcement officer an applicant who has met requirements of subsections (B)(1) through (B)(8).
Section 23-6-450. Subject to the approval of the director, the council is authorized to:
(a) receive and disburse funds; including those hereinafter provided in this article;
(b) accept any donations, contributions, funds, grants, or gifts from private individuals, foundations, agencies, corporations, or the state or federal governments, for the purpose of carrying out the programs and objectives of this article;
(c) consult and cooperate with counties, municipalities, agencies, or official bodies of this State or of other states, other governmental agencies, and with universities, colleges, junior colleges, and other institutions, concerning the development of police training schools, programs, or courses of instruction, selection, and training standards, or other pertinent matters relating to law enforcement;
(d) publish or cause to be published manuals, information bulletins, newsletters, and other materials to achieve the objectives of this article;
(e) make recommendations on such regulations as may be necessary for the administration of this chapter, and advise the director to issue orders directing that public law enforcement agencies comply with this chapter and all regulations so promulgated;
(f) certify and train qualified candidates and applicants for law enforcement officers and provide for suspension, revocation, or restriction of the certification, in accordance with regulations promulgated by department;
(g) require all public entities or agencies that employ or appoint law enforcement officers to provide records in the format prescribed by regulation of employment information of law enforcement officers;
(h) provide by regulation for mandatory continued training of certified law enforcement officers, this training to be completed within each of the various counties which request this training on a regional basis.
Section 23-6-460. An oral or written report, document, statement, or other communication that is written, made, or delivered concerning the requirements or administration of this chapter or regulations promulgated under it must not be the subject of or basis for an action at law or in equity for slander or libel in any court of the State if the communication is between:
(1) a law enforcement agency, its agents, employees, or representatives; and
(2) the department or the council, its agents, employees, or representatives.
Section 23-6-470. Every fine levied on a criminal or traffic violation in this State must have sums added to it which must be set apart and used for the division's program of training in the fields of law enforcement and criminal justice, and every bond for violations must have added the same amounts which must be set apart on forfeiture for the division's program of training, as follows:
(a) Fines or forfeitures up to
and including $99.00 $6.00
(b) Fines or forfeitures
above $99.00 up to and
including $200.00 $25.00
(c) Fines or forfeitures
above $200.00 up to and
including $500.00 $50.00
(d) Fines or forfeitures
above $500.00 up to and
including $1,000.00 $100.00
(e) Fines or forfeitures
above $1,000.00 $200.00
If a portion of the fine is suspended, the sum added to it as set forth in items (a) through (e) must be based upon the portion of the fine not suspended. In addition to the apportioned amounts set forth in items (a) through (e), twenty-five cents must be added to each fine or forfeiture and be paid over to the South Carolina Law Enforcement Training Council and all funds so collected shall be remitted by the department to the South Carolina Law Enforcement Hall of Fame Committee to defray the cost of erecting and maintaining the Hall of Fame. At any time when funds collected pursuant to this paragraph exceed the necessary costs and expenses of the Hall of Fame operation and maintenance as determined by the committee, the department may retain the surplus for use in its law enforcement training programs. The additional portion of fines added by this section for training programs and the South Carolina Law Enforcement Hall of Fame Committee must be assessed and collected by the respective courts or law enforcement officers, who are authorized by law to accept bond, and clearly identified as such on the judgment or bond.
Every magistrate, recorder, judge, mayor, clerk of court, or other person who receives monies from fines or bond forfeitures in criminal or traffic cases shall transmit same to the city treasurer of the incorporated city where he performs his official duties, or to the county treasurer of his county in which he performs his official duties, making the transmittal no less frequently than once each month, and doing so on or before the tenth day of the month following the month being reported. The city treasurer or county treasurer shall make a computation on the basis of the scales of fines and forfeitures set out in this article, and this computed sum must be forwarded to the State Treasurer on or before the twentieth day of that month. Any incorporated municipality in this State may enter into a mutual agreement with the county in which it is located, to provide for joint collections, computations, and transmittals under the terms and conditions as the respective bodies may agree; in these cases, receipts and transmittals required by this article must reflect, in the report of transmittal to the State Treasurer, the collection and forwarding of all these monies from the named sources. The State Treasurer shall record, before the last day of that same month, the total monthly submissions of monies from the respective county treasurers and city treasurers, and shall deposit such monies in the account and to the credit of the Law Enforcement Building and Maintenance Fund, advising the department and the Law Enforcement Training Council of the receipts and deposits for fiscal and administrative purposes. The amount the above scale provides to be set apart and used for the program of training in the fields of law enforcement and criminal justice and for the South Carolina Law Enforcement Hall of Fame must be added to and be levied above the fine or forfeiture imposed.
Section 23-6-480. (A) Whenever the council advises the director and finds that any public law enforcement agency is in violation of any provisions of this chapter, the director may issue an order requiring the public law enforcement agency to comply with the provision. The director may bring a civil action for injunctive relief in the appropriate court or may bring a civil enforcement action. Violation of any court order issued pursuant to this section must be considered contempt of the issuing court and punishable as provided by law. The director may also invoke the civil penalties as provided in subsection (B) for violation of the provisions of this chapter, including any order or regulation hereunder. Any public law enforcement agency against which a civil penalty is invoked by the director may appeal the decision to the Court of Common Pleas of the county where the public law enforcement agency is located.
(B) Any public law enforcement agency which fails to comply with this chapter and regulations promulgated pursuant to this chapter or fails to comply with any order issued by the director is liable for a civil penalty not to exceed one thousand five hundred dollars a violation. When the civil penalty authorized by this subsection is imposed upon a sheriff, the sheriff is responsible for payment of this civil penalty.
Section 23-6-490. When a municipality employs only one law enforcement officer and that officer is attending law enforcement training at the South Carolina Criminal Justice Academy as required by the provisions of Section 23-23-40, the sheriff of the county wherein the municipality is located, or the head of the entity in charge of countywide law enforcement if the county sheriff is not, shall provide systematic patrolling of the municipal area while its law enforcement officer is attending the training.
Section 23-6-495. Whenever, in this article, the term `department' is used, it means the Department of Public Safety and whenever the term `division' is used, it means the Division of Training and Continuing Education of the Department of Public Safety.
Article 11
South Carolina Public Safety Coordinating Council
Section 23-6-500. There is created a council to administer certain responsibilities of the Department of Public Safety and coordinate certain activities between the department, the South Carolina Law Enforcement Division and municipal and county law enforcement agencies. The council is to be known as the South Carolina Public Safety Coordinating Council.
Section 23-6-510. The council is composed of the following persons for terms as indicated:
(1) the Governor or his designee, to serve as chairman, for the term of the Governor;
(2) the Chief of the South Carolina Law Enforcement Division for the term of office for which he is appointed;
(3) the Chairman of the Senate Judiciary Committee for his term of office in the Senate or his designee;
(4) the Chairman of the House of Representatives Judiciary Committee for his term of office in the House of Representatives or his designee;
(5) the Director of the Department of Public Safety;
(6) a sheriff appointed by the Governor for the term of office for which he is elected;
(7) a municipal police chief appointed by the Governor for a term of two years.
Any vacancy occurring must be filled in the manner of the original appointment for the unexpired portion of the term.
Section 23-6-520. The council has the following duties to:
(1) recommend a hiring and promotion policy for commissioned personnel or officers to be administered under the sole authority of the director;
(2) establish a process for the solicitation of applications for public safety grants and to review and approve the disbursement of funds available under Section 402 of Chapter 4 of Title 1 of the Federal Highway Safety Program, public law 89-564 in a fair and equitable manner;
(3) coordinate the use of department personnel by other state or local agencies or political subdivisions;
(4) advise and consult on questions of jurisdiction and law enforcement and public safety activities between the Department of Public Safety, the South Carolina Law Enforcement Division and law enforcement agencies of local political subdivisions.
Section 23-6-530. The council may elect such other officers as it deems necessary from its membership and the members of the council shall serve without pay but are authorized, as eligible, to receive the usual per diem, mileage and subsistence provided for by law.
(B) The Budget and Control Board shall appoint an interim director for the Department of Public Safety who shall serve until February 1, 1994. Any person appointed as interim appointee by the Budget and Control Board shall not be eligible to be appointed as director by the Governor for the initial term of office which begins on February 1, 1994 and ends on January 31, 1996."
Appointment of State Fire Marshal
SECTION 344. Section 23-9-10 of the 1976 Code is amended to read:
"Section 23-9-10. Effective July 1, 1979, the Office of State Fire Marshal is hereby transferred to the Budget and Control Board to operate as a division under the Office of Executive Director. The State Fire Marshal shall have all of the duties and responsibilities formerly exercised by the Chief Insurance Commissioner as State Fire Marshal, ex officio. The State Fire Marshal shall have a Master's Degree from an accredited institution of higher learning and at least four years experience in fire prevention and control or a Bachelor's Degree and eight years experience in fire prevention and control. The Governor shall appoint the State Fire Marshal."
Organization of Office of State Fire Marshal revised
SECTION 345. Section 23-9-10 of the 1976 Code is amended to read:
"Section 23-9-10. The Office of the State Fire Marshal shall hereafter be administered as a division of the Department of Labor, Licensing & Regulation. A director of the Department of Labor, Licensing, and Regulation must be appointed by the governor pursuant to the provisions of Section 40-83-15. The division shall consist of such agents and employees, pursuant to Section 40-73-15, as the director of the department may deem necessarily proper for the enforcement of state and local fire safety codes and standards. The director of the department shall employ a State Fire Marshal, pursuant to Section 40-73-15, to supervise enforcement of the laws and personnel necessary to carry out the duties of this chapter. The State Fire Marshal shall have a Master's Degree from an accredited institution of higher learning and at least four years experience in fire prevention and control or a Bachelor's Degree and eight years experience in fire prevention and control."
Authority to enforce and promulgate regulations
SECTION 346. Section 23-9-60 of the 1976 Code is amended to read:
"Section 23-9-60. The State Fire Marshal shall require conformance with the fire prevention and protection standards based upon nationally recognized standards as may be prescribed by law or regulation for the prevention of fires and the protection of life and property. The Division of the State Fire Marshal shall have the authority to promulgate fire prevention and protection regulations based upon nationally recognized standards for the protection of life and property of the residents of the State from fire."
Reference revised
SECTION 347. Section 23-9-65 of the 1976 Code is amended to read:
"Section 23-9-65. Automatic fueling clips on self-service gasoline dispensers that are permitted in the National Fire Protection Association Pamphlet 30A, 1987 Edition, are permitted to be used in this State. The Division of the State Fire Marshal shall promulgate regulations necessary to implement the provisions of this section."
Appeal provisions revised
SECTION 348. Section 23-9-70 of the 1976 Code is amended to read:
"Section 23-9-70. Whenever the State Fire Marshal, deputy or resident fire marshal shall find, pursuant to examination as provided in Section 23-9-50 of this chapter, any building or other structure which, for any cause, is especially liable to fire and which is so situated as to endanger lives or other property, or is deficient in fire or life protection, an order shall issue in writing directing the defect to be removed or remedied, service of such order shall be made as provided in this chapter and such occupant or owner shall forthwith comply with the terms thereof. If such order is issued by any deputy or resident fire marshal, such occupant or owner may, within twenty-four hours, appeal to the State Fire Marshal, who shall, within ten days, during which time the order appealed from shall be stayed, review the order and file his decision. Provided, however, that any person who feels himself aggrieved by any order or affirmed order of the State Fire Marshal may, within five days after the making or affirming of such order, appeal to an administrative law judge, as provided under Article 5 of Chapter 23 of Title 1, for review of such order and it shall be heard at the first convenient day. In the event a final order entered pursuant to this chapter is not complied with within a period of thirty days from date of service of such final order then the State Fire Marshal shall cause the hazard to be remedied by repair or demolition, and all offensive materials and dangerous conditions removed, at the joint and several expense of the occupant or owner of such building or premises. An itemized statement of costs and expenses shall be furnished the occupant or owner of the premises and the statement shall be satisfied within a period of thirty days, failing which, upon ten days further notice the State Fire Marshal may assess such costs and expenses. Any party aggrieved by an assessment order may appeal to an administrative law judge, as provided under Article 5 of Chapter 23 of Title 1, within a period of ten days from service of such order of assessment. Failing appeal, the order of assessment herein provided shall be filed with the clerk of court of the county wherein such property is located and shall be satisfied by execution and levy as a final judgment duly entered. Provided, however, that in addition to the enforcement procedures authorized in this section, the State Fire Marshal may, when a final order has been issued directing a defect to be removed or remedied and such order is not complied with within thirty days or a greater time if specified in such order, apply to an administrative law judge, as provided under Article 5 of Chapter 23 of Title 1, for an injunction to compel the defect to be removed or remedied and an administrative law judge, if it shall find, that such defect constitutes a dangerous hazard to life or property as set forth in this section, may exercise its injunctive powers to obtain compliance with the order of the State Fire Marshal."
Reference revised
SECTION 349. Section 23-9-90 of the 1976 Code is amended to read:
"Section 23-9-90. In the conduct of any investigation into the cause, origin, or loss resulting from any fire, the State Fire Marshal shall have the same power and rights relative to securing the attendance of witnesses and the taking of testimony under oath as is conferred upon the Director of the Insurance Department or his designee under Section 38-3-180. False swearing by any such witness shall be deemed to be perjury and shall be subject to punishment as such."
Appeal provisions revised
SECTION 350. Section 23-9-150 of the 1976 Code is amended to read:
"Section 23-9-150. All buildings or structures referred to in Section 23-9-40, except single-family dwellings, duplexes or one-story rooming houses, which are unsafe or not provided with adequate egress, or which constitute a fire hazard or are otherwise dangerous to human life, or which in relation to existing use constitute a hazard to safety or health by reason of inadequate maintenance, dilapidation, obsolescence, or abandonment are, severally in contemplation of this section, unsafe buildings. The use and occupancy of all such unsafe buildings is hereby declared illegal and such unsafe conditions shall be corrected by repair, rehabilitation or demolition in accordance with the following procedure:
(1) Whenever the State Fire Marshal shall find any building or structure or portion thereof to be unsafe, as defined in this section, he shall give the owner, agent or person in control of such building or structure written notice, stating the defects found to exist. The notice shall require the owner within a reasonable time as determined by the marshal to either complete specified repairs or improvements, or to demolish and remove the building or structure, or unsafe portion thereof. If necessary, such notice shall also require the building, structure or portion thereof to be vacated forthwith and not reoccupied until the specified repairs and improvements are completed, inspected and approved by the State Fire Marshal.
(2) The marshal shall cause to be posted at each entrance to such building a notice as follows: `THIS BUILDING IS UNSAFE AND ITS USE OR OCCUPANCY HAS BEEN PROHIBITED BY THE STATE FIRE MARSHAL.' Such notice shall remain posted until the required repairs are made or demolition is completed. It shall be unlawful for any person, firm or corporation, or its agents, to remove such notice without written permission of the State Fire Marshal, or for any person to enter the building except for the purpose of making the required repairs or demolishing such building.
(3) The owner, agent or person in control of any building subject to repair may appeal any decision of the Fire Marshal to an administrative law judge, as provided under Article 5 of Chapter 23 of Title 1. Emergency decisions of the fire marshal are not stayed pending appeal.
(4) If the owner, agent or person in control of a property cannot be found within the stated time limit or, if such owner, agent or person in control shall after notice fail, neglect or refuse to comply with notice to repair, rehabilitate, demolish or remove the building or structure or portion thereof, the State Fire Marshal shall cause such building, structure or portion thereof to be vacated and secured."
Reference changed
SECTION 351. Section 23-9-155 of the 1976 Code is amended to read:
"Section 23-9-155. Every dwelling unit within an apartment house having no fire protection system must be provided with an approved listed smoke detector, installed in accordance with the manufacturer's recommendation and listing. The smoke detector must be mounted on the ceiling or wall at a point centrally located in the corridor or area giving access to each group of rooms used for sleeping purposes. Where the dwelling unit contains more than one story, detectors are required on each story including cellars and basements, but not including uninhabitable attics. In dwelling units with split levels, a smoke detector must be installed only on the upper level, if the lower level is less than one full story below the upper level, except that if there is a door between levels then a detector is required on each level. Detectors must be connected to a sounding device or other detector to provide an alarm which must be audible in the sleeping areas. Smoke detectors must be listed and meet the installation requirements of National Fire Protection Association Standard 72A and National Fire Protection Association Standard 74. If the smoke detector malfunctions, and the malfunctioning is caused by the tenant's intentional or negligent act, the landlord is not liable for damage caused by the malfunctioning of the device if the fire causing the damage is not the result of the landlord's intentional or negligent act. If the smoke detector malfunctions, and the malfunctioning is caused by the negligent production of the device, the landlord is not liable for damage caused by the malfunctioning if the landlord had no knowledge of the defective condition and exercised reasonable care in the acquisition and installation of the device, and if the fire causing the damage is not the result of the landlord's intentional or negligent act. The Division of the State Fire Marshal shall promulgate regulations to carry out the provisions of this section. Notwithstanding any other provision of law, this section shall take effect one year after approval by the Governor."
Judicial reference revised
SECTION 352. Section 23-9-170 of the 1976 Code is amended to read:
"Section 23-9-170. Any person who interferes with the action of the Fire Marshal or his agents in the enforcement of his orders shall be deemed guilty of a misdemeanor and, upon conviction, shall be fined not more than one hundred dollars or imprisoned for not more than thirty days.
The Fire Marshal is further authorized to obtain injunctive relief from an administrative law judge pursuant to Article 5 of Chapter 23 of Title 1 to prevent interference with his orders or the implementation thereof."
Judicial reference revised
SECTION 353. Section 23-9-180 of the 1976 Code is amended to read:
"Section 23-9-180. The orders of the Fire Marshal in a situation determined by him to be an emergency and dangerous to public safety shall not be stayed by order of an administrative law judge pursuant to Article 5 of Chapter 23 of Title 1 pending a hearing on the merits of an appeal from such an order."
Appointing and supervisory authorities revised
SECTION 354. Section 23-9-210 of the 1976 Code is amended to read:
"Section 23-9-210. There is created the State Arson Control Program (program) under the office of the State Fire Marshal which shall provide administrative and logistical support to the program.
The State Arson Control Program shall have an advisory committee which must be composed of six members appointed by the Governor for terms of four years each and until their successors are appointed and qualify, except that of those members first appointed, three must be appointed for terms of two years each. One member must be a law enforcement officer, one must be engaged in fire service, one must be a chemist, one must be an insurance agent, one must be a member of the general public representing the consumer, and one must be employed by an insurer licensed to do business in this State. Vacancies on the committee must be filled for the remainder of the unexpired term in the same manner of original appointment.
This committee shall submit to the Director of the Department of Labor, Licensing & Regulation an annual report which is prepared by the office of the State Fire Marshal concerning the operation and effectiveness of the State Arson Control Program.
The State Law Enforcement Division shall contract with the office of the State Fire Marshal to provide all necessary laboratory services and analyses for the program."
References changed and membership revised
SECTION 355. Section 23-10-10 of the 1976 Code is amended to read:
"Section 23-10-10. The State Fire Marshal shall have sole responsibility for the operation of the South Carolina Fire Academy (Academy). The Academy is operated for the express purpose of upgrading the state's fire service personnel-paid, volunteer, and industrial. All buildings, facilities, equipment, property, and instructional materials which are now or become a part of the Academy shall remain assigned to the Academy and may not be integrated with any other local or state agency, association, department, or technical education center, without the consent of the Director of the Department of Licensing, or his designee.
There is created the South Carolina Fire Academy Advisory Committee which shall advise and assist the State Fire Marshal in developing a comprehensive training program based upon the needs of the fire service in this State. Membership on the committee shall include:
(A) the Chairman and appointed members of the Fire School Committee of the South Carolina State Firemen's Association. The Chairman of the Fire School Committee also shall serve as the Chairman of the South Carolina Fire Academy Advisory Committee;
(B) one member from the South Carolina Fire Chief's Association appointed by the president;
(C) one member from the South Carolina Fire Inspectors Association appointed by the president;
(D) one member from the South Carolina Society of Fire Service Instructors Association appointed by the president;
(E) one member from the Professional Firefighters Association appointed by the president;
(F) one member from the South Carolina Chapter of International Association of Arson Investigators appointed by the president;
(G) the Director of the South Carolina Fire Academy who shall serve as secretary without voting privileges. Membership from the South Carolina Fire Academy is limited to the director only;
(H) one industrial fire protection representative appointed by the president of the South Carolina Chapter of the American Society of Safety Engineers;
(I) the Executive Director of the South Carolina State Firemen's Association who shall serve as a member ex officio without voting privileges;
(J) the State Fire Marshal as ex officio without voting privileges;
(K) one member from higher education having experience and training in curriculum development appointed by the Director of the Department of Labor, Licensing and Regulation."
References revised
SECTION 356. Section 23-23-30(A)(4) of the 1976 Code is amended to read:
"(4) the Director of the South Carolina Department of Natural Resources;"
Organization of Hall of Fame and membership of committee
SECTION 357. Section 23-25-20 of the 1976 Code is amended to read:
"Section 23-25-20. (A) The South Carolina Hall of Fame shall hereafter be administered as a division of the Department of Public Safety.
(B) To plan, enact, and administer the Hall of Fame, there is hereby created the Law Enforcement Officers Hall of Fame Committee. The committee shall consist of the following ex officio members:
(1) the Chief of the South Carolina Law Enforcement Division, who shall serve as chairman;
(2) the commanding officer of the Highway Patrol and the commanding officer of the State Police;
(3) the Director of the Department of Corrections;
(4) the Secretary of the South Carolina Sheriffs' Association;
(5) the Executive Director of the South Carolina Law Enforcement Officers Association;
(6) the President of the South Carolina Police Chiefs' Association, or his designee;
(7) a representative of the Division of Natural Resources Police, to be appointed by the Director of the Department of Natural Resources; and
(8) the Director of the Department of Public Safety.
(C) All members of the committee may designate persons to represent them at meetings they are unable to attend."
Procedures of committee
SECTION 358. Section 23-25-40 of the 1976 Code is amended to read:
"Section 23-25-40. The committee shall establish procedures and regulations for the nomination of members of the Hall of Fame. All selections of persons for Hall of Fame membership shall be made by a majority vote of the total membership of the committee.
Meetings of the committee shall be held at least quarterly, and more frequently at the call of the chairman. The committee shall establish its own rules of procedure. Members shall not receive compensation for their services with the committee but shall be allowed the usual mileage, per diem and subsistence provided by law for boards, committees and commissions. The committee is authorized to employ clerical assistance as the director deems necessary to perform its functions as prescribed in this chapter from funds made available as provided in Section 23-23-70."
References revised
SECTION 359. Section 23-28-120 of the 1976 Code is amended to read:
"Section 23-28-120. The provisions of this chapter shall not apply to deputy enforcement officers of the Natural Resources Enforcement Division of the South Carolina Department of Natural Resources."
References revised
SECTION 360. Section 23-31-140(A)(5) and (F) of the 1976 Code are amended to read:
"(5) South Carolina driver's license number or Department of Revenue and Taxation identification card number or, in the case of an applicant on active duty in the United States military, the number from the applicant's current United States military identification card;
(F) No person may purchase a pistol from a dealer unless he is a resident of this State. For the purpose of this article, the possession of a valid South Carolina driver's license or Department of Revenue and Taxation identification card constitutes proof of residency. However, residency is not required of a person who is on active duty in the United States military and who is in possession of a current United States military identification card."
Name change
SECTION 361. Section 23-33-20 of the 1976 Code is amended to read:
"Section 23-33-20. Before any person shall fire or attempt to fire or discharge any missile within the borders of this State, he shall first procure a written permit from the Aeronautics Division of the Department of Commerce on such form as it may prescribe."
Reference revised
SECTION 362. Section 23-35-70(3) of the 1976 Code is amended to read:
"(3) Each retailer is required to procure an annual license or permit at a cost of fifty dollars which shall authorize the licensee to sell permissible fireworks. The license or permit must be obtained from the municipal clerk, or comparable municipal official, for retail sales within a municipality, after approval of the applicant and his place of business by the municipal fire chief serving such municipality; or, from the county clerk of court for retail sales in the county outside a municipality after approval of the applicant and his place of business by the county sheriff. No permit may be issued to an applicant until the premises where the fireworks are to be kept for the purpose of sale have been inspected and it is determined that the building and the facilities within the building meet safety standards for the storage and sale of permissible fireworks. The issuance of the permit is subject to regulations promulgated by the State Board of Pyrotechnic Safety governing the storage, safekeeping, and sale of fireworks. No person or firm may be issued a retail license who is not already licensed by the State Department of Revenue and Taxation for sales tax purposes and who has not held the sales tax license for at least sixty days. Permits issued to retailers must be prominently displayed. No permit provided for herein may be transferred nor shall a person be permitted to operate under a permit issued to any other person."
Reference revised
SECTION 363. Section 23-35-140 of the 1976 Code is amended to read:
"Section 23-35-140. Notwithstanding any other provisions of law, the Division of the State Fire Marshal shall issue rules and regulations regarding the storage, transportation, sale and use of permissible fireworks within this State. Such regulations may prescribe, but shall not be limited to, quantity of fireworks that may be kept, the manner of transporting fireworks within the State, the type of buildings or structures where such fireworks may be kept, sold or used, the manner of storage of fireworks within such buildings or structures and such other matters that may be necessary to protect lives and property. Violations of such regulations when duly promulgated shall be punished as provided for in Section 23-35-150."
Name and judicial reference revised
SECTION 364. Section 23-36-80 of the 1976 Code is amended to read:
"Section 23-36-80. The Division of the State Fire Marshal shall promulgate regulations setting forth minimum general standards covering the use, sale, handling, and storage of explosive materials. The regulations must be in substantial conformity with generally accepted standards of safety concerning these subject matters. Regulations in substantial conformity with the published rules and suggested standards of the Institute of Makers of Explosives are considered in substantial conformity with accepted standards of safety. All procedures with regard to the revocation, suspension, or denial of licenses and permits shall be handled by an administrative law judge as provided under Article 5 of Chapter 23 of Title 1. The State Fire Marshal is the enforcement authority of this chapter."
Employment provisions revised
SECTION 365. Section 23-36-160 of the 1976 Code is amended to read:
"Section 23-36-160. The Director of the Department of Labor, Licensing & Regulation, pursuant to Section 40-73-15, may employ such personnel as may be necessary to carry out the provisions of this chapter. The agents employed by the Division of the State Fire Marshal shall have statewide authority, the power of arrest, and all other powers and authority of duly certified law enforcement officers of the State."
References revised
SECTION 366. Section 23-41-30(c) of the 1976 Code is amended to read:
"(c) When an insurance company denies payment of a claim to an insured on grounds of arson, false swearing, material misrepresentation, fraud, or similar claim or defense such insurer shall in all cases notify in writing the Director of the Department of Insurance. The Director of the Department of Insurance may notify, after the investigation, an authorized agency if he considers the action to be appropriate."
Reference revised
SECTION 367. Section 23-41-30(f) of the 1976 Code is amended to read:
"(f) Any insurance company or authorized agency which notifies the Director of the Department of Insurance or provides or releases information, whether oral or written, and any person acting in their behalf, pursuant to this chapter is immune from any liability arising out of such notification or release."
Definition deleted
SECTION 368. Section 23-43-20 of the 1976 Code is amended to read:
"Section 23-43-20. As used in this chapter:
(1) `Council' means the South Carolina Building Codes Council as established by Section 6-9-60.
(2) `Modular building unit' means any building of closed construction, regardless of type of construction or occupancy classification, other than a mobile or manufactured home, constructed off-site in accordance with the applicable codes, and transported to the point of use for installation or erection.
(3) `Installation' means the assembly of modular building structures on-site and the process of affixing modular buildings related components to land, a foundation, footings, utilities, or an existing building.
(4) `Local government' means any political subdivision of the State with authority to establish standards and requirements applicable to the construction, installation, alteration, and repair of buildings.
(5) `Mobile home' or `manufactured home' means any residential dwelling unit constructed to standards and codes as promulgated by the United States Department of Housing and Urban Development.
(6) `Approved inspection agency' means an agency approved by the council to provide plan review and approval, evaluation, and inspection in addition to adequate follow-up services at the point of manufacture to insure that production units are in full compliance with the provisions of this chapter.
(7) `Point of manufacture' means the place of business at which machinery, equipment, and other capital goods are assembled and operated for the purpose of fabricating, constructing, or assembling modular building units.
(8) `Fees' means monies to be paid to the council from any person engaged in the manufacture, inspection, or installation of modular building units.
(9) `Certification' means conforming to the regulations of the council.
(10) `Certification label' means the approved form of certification by the council issued to the manufacturer that is permanently affixed to each transportable section of each factory-built modular structure for sale within the State."
Reference revised
SECTION 369. Section 23-43-70 of the 1976 Code is amended to read:
"Section 23-43-70. The council shall have printed all regulations prescribing standards for modular building units, and they must be furnished upon request to the public."
Name and review provisions revised
SECTION 370. Section 23-43-110 of the 1976 Code is amended to read:
"Section 23-43-110. The council shall suspend or revoke, or cause to be suspended or revoked, the certification of any modular building unit which the council finds not to comply with this chapter or regulations promulgated by authority of this chapter, or which has been manufactured pursuant to a building system or compliance assurance program as to which approval has been suspended or revoked, or which has been altered after certification. If the manufacturer fails to comply with a corrective order, labels of certification must be removed from any modular building unit until it is brought into compliance with this chapter and applicable regulations. Notice of suspension or revocation of certification must be in writing with the reasons for suspension or revocation set forth. Suspensions or revocations may be appealed to the Modular Buildings Board of Appeals. Any decision by the board to suspend, revoke, or otherwise restrict the certification of any modular building unit shall be by majority vote and shall be subject to review by an administrative law judge as provided under Article 5 of Chapter 23 of Title 1."
Examination of modular building unit
SECTION 371. Section 23-43-140 of the 1976 Code is amended to read:
"Section 23-43-140. Any member, officer or agent of the Building Council may at all reasonable hours enter any modular building unit, upon complaint of any person having a direct interest therein, for examination as to compliance with the regulations of the council. Whenever the officer finds any violation of the regulations, he shall order the manufacturer to bring the unit into compliance, within a reasonable time, to be fixed in the order. If the manufacturer feels aggrieved by the order, it may, within ten days after receipt, appeal to the Modular Buildings Board of Appeals. The manufacturer's complaint must be reviewed by the Modular Buildings Board of Appeals. Unless a variance is granted, the order shall remain in force and must be complied with by the manufacturer."
Judicial procedures revised
SECTION 372. Section 23-43-180 of the 1976 Code is amended to read:
"Section 23-43-180. The council may obtain injunctive relief from an administrative law judge as provided under Article 5 of Chapter 23 of Title 1 to enjoin the sale, delivery, or installation of modular building units or of buildings utilizing such components, for which certification is required under this chapter, upon an affidavit of the council specifying the manner in which the modular building units do not conform to the requirements of this chapter or applicable regulations. The council may obtain injunctive relief from an administrative law judge as provided under Article 5 of Chapter 23 of Title 1 to enjoin any local government from promulgating, adopting, or enforcing any ordinance, rules, regulations, or construction codes and standards for modular building units which are not consistent with this chapter."
Board of Corrections abolished, department restructured
SECTION 373. Section 24-1-40 of the 1976 Code is amended to read:
"Section 24-1-40. The department shall be governed by a director appointed by the Governor with the advice and consent of the Senate. Any vacancy occurring for any cause shall be filled by the Governor in the manner provided for by law for the unexpired term. The director shall be subject to removal from office as provided in Section 1-3-240."
Additional duties of director
SECTION 374. Section 24-1-90 of the 1976 Code is amended to read:
"Section 24-1-90. The director shall have authority to make and promulgate rules and regulations necessary for the proper performance of the department's functions."
Department director qualifications
SECTION 375. Section 24-1-100 of the 1976 Code is amended to read:
"Section 24-1-100. The director shall possess qualifications and training which suit him to manage the affairs of a modern penal institution."
Board functions eliminated
SECTION 376. Section 24-1-110 of the 1976 Code is amended to read:
"Section 24-1-110. The duty of the director shall extend to the employment and discharge of such persons as may be necessary for the efficient conduct of the prison system."
Board functions eliminated
SECTION 377. Section 24-1-120 of the 1976 Code is amended to read:
"Section 24-1-120. The director shall execute a good and sufficient bond payable to the State in the sum of fifty thousand dollars, conditioned for the faithful performance of the duties of his office and the accurate accounting for all moneys and property coming into his hands; and he may require of other officers, employees and agents of the prison system a good and sufficient bond in such sum as it may determine upon, payable to the State upon like conditions. Such bonds shall be executed by a surety company authorized to do business under the laws of this State, and the premium on any such bond shall be paid by the State out of the support and maintenance fund of the prison system."
Director controls department
SECTION 378. Section 24-1-130 of the 1976 Code is amended to read:
"Section 24-1-130. The director shall be vested with the exclusive management and control of the prison system, and all properties belonging thereto, subject to the limitations of Sections 24-1-20 to 24-1-230 and 24-1-260 and shall be responsible for the management of the affairs of the prison system and for the proper care, treatment, feeding, clothing, and management of the prisoners confined therein. The director shall manage and control the prison system."
Power of director
SECTION 379. Section 24-1-140 of the 1976 Code is amended to read:
"Section 24-1-140. The director shall have power to prescribe reasonable rules and regulations governing the humane treatment, training, and discipline of prisoners, and to make provision for the separation and classification of prisoners according to sex, color, age, health, corrigibility, and character of offense upon which the conviction of the prisoner was secured."
Power transferred to director
SECTION 380. Section 24-1-145 of the 1976 Code is amended to read:
"Section 24-1-145. Notwithstanding any other provisions of law, when any treaty between the United States and a foreign country provides for the transfer or exchange of convicted offenders to the country of which they are citizens or nationals, the Governor, on behalf of this State, shall be authorized, subject to the terms of such treaty, to permit the Director of the Department of Corrections to transfer or exchange offenders and take any other action necessary to participate in such treaty."
Power transferred to director
SECTION 381. Section 24-1-150 of the 1976 Code is amended to read:
"Section 24-1-150. Annually the director shall cause a full and complete inventory of all property of every description belonging to the prison system to be made, and there shall be set opposite each item the book and actual market value of same. Such inventory shall further include a statement of the fiscal affairs of the system for the preceding fiscal year; and a sufficient number of copies of such inventory and report shall be printed to give general publicity thereto."
Board functions eliminated
SECTION 382. Section 24-1-160 of the 1976 Code is amended to read:
"Section 24-1-160. The director shall have power to require all necessary reports from any department, officer, or employee of the prison system at stated intervals."
Power transferred to director
SECTION 383. Section 24-1-170 of the 1976 Code is amended to read:
"Section 24-1-170. The director shall keep, or cause to be kept, correct and accurate accounts of each and every financial transaction of the prison system, including all receipts and disbursements of every character. He shall receive and receipt for all money paid to him from every source whatsoever, and shall sign all warrants authorizing any disbursement of any sum or sums on account of the prison system. He shall keep full and correct accounts with any industry, department and farm of the prison system, and with all persons having financial transactions with the prison system."
Power transferred to director
SECTION 384. Section 24-1-200 of the 1976 Code is amended to read:
"Section 24-1-200. The director shall inquire and examine into the sentences under which the convicts in the prison are confined and also into the condition, physical or otherwise, of the convicts undergoing sentence and shall report to the Probation, Parole and Pardon Board quarterly, on the first day of November, February, May, and August in each year, such cases as it may deem, after such examination, fit subjects for clemency."
Power transferred to department
SECTION 385. Section 24-1-210 of the 1976 Code is amended to read:
"Section 24-1-210. The department shall prosecute all violations of the law in reference to the treatment of convicts."
Various powers transferred
SECTION 386. Section 24-1-220 of the 1976 Code is amended to read:
"Section 24-1-220. All actions or suits at law accruing to the department shall be brought in the name of the director, who shall also appear for and defend actions or suits at law in which it is to the interest of the department to appear as a party defendant. No suit or action at law shall be brought for or defended on behalf of the department except by authority of the director."
Function transferred to department
SECTION 387. Section 24-1-230 of the 1976 Code is amended to read:
"Section 24-1-230. The Department of Corrections may purchase or condemn lands for the construction of any building or sewerage or water line essential to the operation of the prison system."
Function transferred to director
SECTION 388. Section 24-1-250 of the 1976 Code is amended to read:
"Section 24-1-250. The State Department of Corrections is hereby authorized to sell mature trees and other timber suitable for commercial purposes from lands owned by the department. However, the proceeds derived from these sales shall not exceed fifty thousand dollars in any one year. Prior to such sales, the director shall consult with the State Forester to determine the economic feasibility of and obtain approval for such sales. Funds derived from timber sales shall be utilized by the Department of Corrections to maintain and expand the agricultural program subject to the approval of the Budget and Control Board."
Grammatical changes
SECTION 389. Section 24-1-260 of the 1976 Code is amended to read:
"Section 24-1-260. The Department of Corrections is hereby authorized to retain all fees collected in connection with the clinical pastoral training program conducted by the department for use in the continued operation of that program."
Name change
SECTION 390. Section 24-1-270 of the 1976 Code is amended to read:
"Section 24-1-270. (1) As used in this section, the term `state correctional properties' shall include all property under the control of the Director of the South Carolina Department of Corrections, or his agents, for the confinement of inmates or other uses pursuant to the director's responsibilities.
(2) Notwithstanding any other provisions of law relating to trespass, it shall be unlawful for any person to:
(a) trespass or loiter on state correctional properties after notice to leave is given by the director or his authorized agents or, after lawful entry, refuse to leave the premises after such notice; or
(b) incite, solicit, urge, encourage, exhort, instigate or procure any other person to violate the provisions of item (a) of this subsection.
(3) Any person violating the provisions of this section shall be deemed guilty of a misdemeanor and, upon conviction, shall be fined not exceeding five thousand dollars or imprisoned for a term not exceeding five years, or both.
(4) The provisions of this section shall not be construed to bar prosecution of other offenses committed on state correctional property."
Powers transferred
SECTION 391. Section 24-3-20 of the 1976 Code is amended to read:
"Section 24-3-20. (a) Notwithstanding the provisions of Section 24-3-10, any person convicted of an offense against the State of South Carolina and committed to the State Penitentiary at Columbia shall be in the custody of the Department of Corrections of the State of South Carolina, and the director shall designate the place of confinement where the sentence shall be served. The director may designate as a place of confinement any available, suitable, and appropriate institution or facility, including a county jail or prison camp, whether maintained by the State Department of Corrections or otherwise. Provided, that if the facility is not maintained by the department, the consent of the sheriff of the county wherein the facility is located must first be obtained.
(b) When the director determines that the character and attitude of a prisoner reasonably indicates that he may be so trusted, it may extend the limits of the place of confinement of the prisoner by authorizing him to work at paid employment or participate in a training program in the community on a voluntary basis while continuing as a prisoner, provided that the director determines that:
(1) such paid employment will not result in the displacement of employed workers, nor be applied in skills, crafts, or trades in which there is surplus of available gainful labor in the locality, nor impair existing contracts for services; and
(2) the rates of pay and other conditions of employment will not be less than those paid and provided for work of similar nature in the locality in which the work is to be performed.
(c) Notwithstanding the provisions of Section 24-3-10 or any other provisions of law, the department shall make available for use in litter control and removal any or all prison inmates not engaged in programs determined by the department to be more beneficial in terms of rehabilitation and cost effectiveness. Provided, however, that the Department of Corrections shall not make available for litter control those inmates who, in the judgment of the director, pose a significant threat to the community or who are not physically, mentally or emotionally able to perform work required in litter control. No inmate shall be assigned to a county prison facility except upon written acceptance of the inmate by the chief county administrative officer or his designee and no prisoner may be assigned to litter control in a county which maintains a facility unless he is assigned to the county prison facility. The Department of Corrections shall include in its annual report to the Budget and Control Board an analysis of the job and program assignments of inmates. This plan shall include such programs as litter removal, prison industries, work release, education and counseling. The Department of Corrections shall make every effort to minimize not only inmate idleness but also occupation in marginally productive pursuits. The State Budget and Control Board and the Governor's Office shall comment in writing to the department concerning any necessary alterations in this plan.
(d) The Department of Corrections may establish a Restitution Program for the purpose of allowing persons convicted of nonviolent offenses who are sentenced to the State Department of Corrections to reimburse the victim for the value of the property stolen or damages caused by such offense. In the event that there is no victim involved, the person convicted shall contribute to the administration of the program. The Department of Corrections is authorized to promulgate regulations necessary to administer the program.
(e) In the event that a person is sentenced to not more than seven years and for not more than a second offense for the following offenses: larceny, grand larceny, forgery and counterfeiting, embezzlement, stolen property, damage to property, receiving stolen goods, shoplifting, housebreaking, fraud, vandalism, breach of trust with fraudulent intent, and storebreaking, the judge shall establish at the time of sentencing a maximum amount of property loss which may be used by the South Carolina Department of Corrections in the administration of the restitution program."
Board powers transferred to department or director
SECTION 392. Section 24-3-30 of the 1976 Code is amended to read:
"Section 24-3-30. Notwithstanding the provisions of Section 24-3-10 of the 1976 Code, or any other provision of law, any person convicted of an offense against the State shall be in the custody of the Department of Corrections of the State, and the department shall designate the place of confinement where the sentence shall be served. The department may designate as a place of confinement any available, suitable and appropriate institution or facility, including but not limited to a county jail or work camp whether maintained by the State Department of Corrections or otherwise, but the consent of the officials in charge of the county institutions so designated shall be first obtained. Provided, that if imprisonment for three months or less is ordered by the court as the punishment, all persons so convicted shall be placed in the custody, supervision and control of the appropriate officials of the county wherein the sentence was pronounced, if such county has facilities suitable for confinement. Provided, further, that the Department of Corrections shall be notified by the county officials concerned not less than six months prior to the closing of any county prison facility which would result in the transfer of the prisoners of the county facility to facilities of the department.
Each county administrator, or the equivalent, having charge of county prison facilities, may, upon the department's designating the county facilities as the place of confinement of a prisoner, use the prisoner assigned thereto for the purpose of working the roads of the county or other public work. Any prisoner so assigned to the county shall be under the custody and control of the administrator or the equivalent during the period to be specified by the director at the time of the prisoner's assignment, but the assignment shall be terminated at any time the director determines that the place of confinement is unsuitable or inappropriate, or that the prisoner is employed on other than public works. If, upon termination of the assignment, the prisoner is not returned, habeas corpus will lie."
Board powers transferred to department or director
SECTION 393. Section 24-3-40 of the 1976 Code is amended to read:
"Section 24-3-40. The employer of a prisoner authorized to work at paid employment in the community under Sections 24-3-20 to 24-3-50 shall pay the prisoner's wages directly to the Department of Corrections. The Director of the Department of Corrections shall withhold five percent of the gross wages and promptly place these funds on deposit with the State Treasurer for credit to a special account to support victim assistance programs established pursuant to the `Victims of Crime Act of 1984, Public Law 98-473, Title II, Chapter XIV, Section 1404'. The director is further authorized to withhold from the wages such costs incident to the prisoner's confinement as the Department of Corrections considers appropriate and reasonable. These withholdings must be deposited to the maintenance account of the Department of Corrections. The balance of the wages may, in the discretion of the director, and in such proportions determined by the director, be disbursed to the prisoner, the prisoner's dependents, to the victim of the crime, or deposited to the credit of the prisoner."
Name change
SECTION 394. Section 24-3-60 of the 1976 Code is amended to read:
"Section 24-3-60. The clerks of the courts of general sessions and common pleas of the several counties in this State shall immediately after the adjournment of the court of general sessions, in their respective counties, notify the Department of Corrections of the number of convicts sentenced by the court to imprisonment in the penitentiary. The department, as soon as it receives such notice, shall send a suitable number of guards to convey such convicts to the penitentiary."
Name change
SECTION 395. Section 24-3-70 of the 1976 Code is amended to read:
"Section 24-3-70. No sum beyond the actual expenses incurred in conveying such convicts to the penitentiary shall be allowed for such services. Such sum shall be paid to the department by the State Treasurer upon the warrant of the Comptroller General."
Name change
SECTION 396. Section 24-3-80 of the 1976 Code is amended to read:
"Section 24-3-80. The director of the prison system shall admit and detain in the Department of Corrections for safekeeping any prisoner tendered by any law enforcement officer in this State by commitment duly authorized by the Governor, provided, a warrant in due form for the arrest of the person so committed shall be issued within forty-eight hours after such commitment and detention. No person so committed and detained shall have a right or cause of action against the State or any of its officers or servants by reason of having been committed and detained in the penitentiary."
Name change
SECTION 397. Section 24-3-90 of the 1976 Code is amended to read:
"Section 24-3-90. The director shall receive and safely keep at hard labor, in the prison, all prisoners sentenced to confinement, at hard labor therein, by the authority of the United States, until they shall be discharged agreeably to the laws of the United States."
Department names changed
SECTION 398. Section 24-3-110 of the 1976 Code is amended to read:
"Section 24-3-110. The State Department of Corrections may purchase the machinery and establish a plant for the purpose of manufacturing motor vehicle license plates and metal road signs. The charge for license plates and metal road signs sold to the Department of Revenue and Taxation and the Department of Transportation shall be in line with the prices previously paid private manufacturers and all state motor vehicle license plates, metal road signs and other signs capable of being manufactured by such a plant shall be purchased through the Department of Corrections and manufactured by it. The Department of Revenue and Taxation may prescribe the specifications of plates and the Department of Transportation may prescribe the specifications of signs used, the specifications to include colors, quality, and quantity."
Department names changed
SECTION 399. Section 24-3-130(A) of the 1976 Code is amended to read:
"(A) The State Department of Corrections may permit the use of prison inmate labor on state highway projects or other public projects that may be practical and consistent with safeguarding of the inmates employed on the projects and the public. The Department of Transportation, another state agency, or a county, municipality or public service district making a beneficial public improvement may apply to the department for the use of inmate labor on the highway project or other public improvement or development project. If the director determines the labor may be performed with safety and the project is beneficial to the public he may assign inmates to labor on the highway project or other public purpose project. The inmate labor force must be supervised and controlled by officers designated by the department but the direction of the work performed on the highway or other public improvement project must be under the control and supervision of the person designated by the agency, county, municipality, or public service district responsible for the work. No person convicted of criminal sexual conduct in the first, second, or third degree or a person who commits a violent crime while on a work release program may be assigned to perform labor on a project described by this section."
Name change
SECTION 400. Section 24-3-131 of the 1976 Code is amended to read:
"Section 24-3-131. The Department of Corrections shall determine whether an agency permitted to utilize convict labor on public projects pursuant to Section 24-3-130 can adequately supervise the inmates. If the director determines that the agency lacks the proper personnel, the agency shall be required to reimburse the department for the cost of maintaining correctional officers to supervise the convicts. In all cases the Department of Corrections shall be responsible for adequate supervision of the inmates."
Commissioner changed to director
SECTION 401. Section 24-3-140 of the 1976 Code is amended to read:
"Section 24-3-140. The Director of the Department of Corrections shall, when called upon by the keeper of the State House and Grounds, furnish such convict labor as he may need to keep the State House and Grounds in good order."
Name change
SECTION 402. Section 24-3-150 of the 1976 Code is amended to read:
"Section 24-3-150. Any person who has been sentenced to the State Penitentiary, or to the county public works and transferred to the State Penitentiary, may be transferred to the chain gang of the county from which convicted upon request of the county official having charge of such chain gang and with the consent and approval of the State Department of Corrections."
Commissioner changed to director
SECTION 403. Section 24-3-160 of the 1976 Code is amended to read:
"Section 24-3-160. Any institution of this State getting convicts from the State Penitentiary by any act or joint resolution of the General Assembly shall be required to pay to the Director of the Department of Corrections all moneys expended by him for transportation, guarding, clothing and feeding such convicts while working for such institutions and also for medical attention, and the officer in charge of any such institution shall also execute and deliver to the director, at the end of each year, a receipt of five dollars and fifty cents per month for the work of each convict so employed."
Name change
SECTION 404. Section 24-3-170 of the 1976 Code is amended to read:
"Section 24-3-170. Clemson University shall pay to the State Department of Corrections hire for all convicts used by the college at the rate of six dollars per month and shall pay the cost of clothing, feeding and guarding such convicts while so used and also the transportation of such convicts and guards back and forth from the penitentiary to the university."
Name change
SECTION 405. Section 24-3-180 of the 1976 Code is amended to read:
"Section 24-3-180. Whenever a convict shall be discharged from the penitentiary, the State Department of Corrections shall furnish such convict with a suit of common clothes, if deemed necessary, and transportation from the penitentiary to his home or as near thereto as can be done by public conveyances. The cost of such transportation and clothes shall be paid to the State Treasurer, on the draft of the department, countersigned by the Comptroller General."
Name change
SECTION 406. Section 24-3-190 of the 1976 Code is amended to read:
"Section 24-3-190. The balance in the hands of the State Department of Corrections at the close of any year, together with all other amounts received or to be received from the hire of convicts or from any other source during the current fiscal year, are appropriated for the support of the penitentiary."
Commissioner changed to director
SECTION 407. Section 24-3-200 of the 1976 Code is amended to read:
"Section 24-3-200. Prisoners sentenced from one county and subsequently transferred to the jurisdiction of the State Department of Corrections, may, upon request of the supervisor of another county, be transferred to that county to serve the remainder of the sentence imposed or a part thereof if the director of the department and the prisoner consent in writing to the transfer."
Commissioner changed to director
SECTION 408. Section 24-3-210 of the 1976 Code is amended to read:
"Section 24-3-210. The director may extend the limits of the place of confinement of a prisoner, as to whom there is reasonable cause to believe he will honor his trust, by authorizing him, under prescribed conditions, to leave the confines of that place unaccompanied by a custodial agent for a prescribed period of time to:
(1) contact prospective employers;
(2) secure a suitable residence for use when released on parole or upon discharge;
(3) obtain medical services not otherwise available;
(4) participate in a training program in the community or any other compelling reason consistent with the public interest;
(5) visit or attend the funeral of a spouse, child (including stepchild, adopted child, or child as to whom the prisoner, though not a natural parent, has acted in the place of a parent), parent (including a person, though not a natural parent, who has acted in the place of a parent), brother, or sister.
The director also may similarly extend the limits of the place of confinement of a terminally ill inmate for an indefinite length of time when there is reasonable cause to believe that such inmate will honor his trust.
The wilful failure of a prisoner to remain within the extended limits of his confinement or return within the time prescribed to the places of confinement designated by the director shall be deemed an escape from the custody of the director punishable as provided in Section 24-13-410."
Name change
SECTION 409. Section 24-3-315 of the 1976 Code is amended to read:
"Section 24-3-315. The Department of Corrections shall ensure that inmates participating in any prison industry program pursuant to the Justice Assistance Act of 1984 is on a voluntary basis. The director must determine prior to using inmate labor in a prison industry project that it will not displace employed workers, that the locality does not have a surplus of available labor for the skills, crafts, or trades that would utilize inmate labor, and that the rates of pay and other conditions of employment are not less than those paid and provided for work of similar nature in the locality in which the work is performed."
Board name changed to department
SECTION 410. Section 24-3-320 of the 1976 Code is amended to read:
"Section 24-3-320. The State Department of Corrections may purchase, in the manner provided by law, equipment, raw materials and supplies and engage the supervisory personnel necessary to establish and maintain for this State at the penitentiary or any penal farm or institution now, or hereafter, under control of the department, industries for the utilization of services of convicts in the manufacture or production of such articles or products as may be needed for the construction, operation, maintenance or use of any office, department, institution or agency supported in whole or in part by this State and the political subdivisions thereof."
Board name changed to department
SECTION 411. Section 24-3-330 of the 1976 Code is amended to read:
"Section 24-3-330. All offices, departments, institutions and agencies of this State which are supported in whole or in part by this State shall purchase, and all political subdivisions of this State may purchase, from the State Department of Corrections, articles or products made or produced by convict labor in this State or any other state, as provided for by this article, and no such article or product shall be purchased by any such office, department, institution or agency from any other source, unless excepted from the provisions of this section, as hereinafter provided. All purchases shall be made from the Department of Corrections, upon requisition by the proper authority of the office, department, institution, agency or political subdivision of this State requiring such articles or products."
Board name changed to department
SECTION 412. Section 24-3-340 of the 1976 Code is amended to read:
"Section 24-3-340. Notwithstanding the provisions of Sections 24-3-310 to 24-3-330 and 24-3-360 to 24-3-420, no office, department, institution or agency, of this State, which is supported in whole or in part by this State, shall be required to purchase any article or product from the State Department of Corrections unless the purchase price of such article or product is no higher than that obtainable from any other producer or supplier."
Board name changed to department
SECTION 413. Section 24-3-360 of the 1976 Code is amended to read:
"Section 24-3-360. The State Department of Corrections shall cause to be prepared, annually, at such times as it may determine, catalogues containing the description of all articles and products manufactured or produced under its supervision pursuant to the provisions of this article, copies of which catalogue shall be sent by it to all offices, departments, institutions and agencies of this State and made accessible to all political subdivisions of this State referred to in Sections 24-3-310 to 24-3-330. At least thirty days before the commencement of each fiscal year, the proper official of each such office, department, institution or agency, when required by the State Department of Corrections, shall report to the State Department of Corrections estimates for such fiscal year of the kind and amount of articles and products reasonably required for such ensuing year, referring in such estimates to the catalogue issued by the State Department of Corrections in so far as articles and products indicated are included in this catalogue."
Board name changed to department
SECTION 414. Section 24-3-380 of the 1976 Code is amended to read:
"Section 24-3-380. The State Department of Corrections shall fix and determine the prices at which all articles or products manufactured or produced shall be furnished, which prices shall be uniform and nondiscriminating to all and shall be as near as the usual market price for such as may be practicable."
Board name changed to department
SECTION 415. Section 24-3-390 of the 1976 Code is amended to read:
"Section 24-3-390. The State Department of Corrections shall have power and authority to prepare and promulgate rules and regulations which are necessary to give effect to the provisions of this article with respect to matters of administration and procedure respecting it."
Board changed to department or director
SECTION 416. Section 24-3-400 of the 1976 Code is amended to read:
"Section 24-3-400. All monies collected by the State Department of Corrections from the sale or disposition of articles and products manufactured or produced by convict labor, in accordance with the provisions of this article, must be forthwith deposited with the State Treasurer to be kept and maintained as a special revolving account designated `Prison Industries Account', and the monies so collected and deposited must be used solely for the purchase of manufacturing supplies, equipment, machinery, and buildings used to carry out the purposes of this article, as well as for the payment of the necessary personnel in charge, and to otherwise defray the necessary expenses incident thereto and to discharge any existing obligation to the Sinking Funds and Property Division of the State Budget and Control Board, all of which must be under the direction and subject to the approval of the Director of the State Department of Corrections. The Department of Corrections shall contribute an amount of not less than five percent nor more than twenty percent of the gross wages paid to inmate workers participating in any prison industry project established pursuant to the Justice Assistance Act of 1984 (P.L. 98-473) and promptly place these funds on deposit with the State Treasurer for credit to a special account to support victim assistance programs established pursuant to the Victims of Crime Act of 1984 (P.L. 98-473, Title 2, Chapter 14, Section 1404). The Prison Industries Account must never be maintained in excess of the amount necessary to efficiently and properly carry out the intentions of this article. When, in the opinion of the Director of the Department of Corrections, the Prison Industries Account has reached a sum in excess of the requirements of this article, the excess must be used by the Department of Corrections for operating expenses and permanent improvements to the state prison system, subject to the approval of the State Budget and Control Board."
Board name changed to department
SECTION 417. Section 24-3-410(C) of the 1976 Code is amended to read:
"(C) A person violating the provisions of this section is guilty of a misdemeanor and, upon conviction, must be fined not less than two hundred nor more than five thousand dollars or imprisoned for not less than three months nor more than one year, or both. Each sale or offer for sale is a separate offense under this section. Proceeds of the sale of agricultural products, when produced by an instrumentality under control of the State Department of Corrections, must be applied as provided in Section 24-1-250."
Commissioner changed to director
SECTION 418. Section 24-3-510 of the 1976 Code is amended to read:
"Section 24-3-510. Upon the conviction of any person in this State of a crime the punishment of which is death, the presiding judge shall sentence such convicted person to death according to the provisions of Section 24-3-530 and make such sentence in writing. Such sentence shall be filed with the papers in the case against such convicted person and a certified copy thereof shall be transmitted by the clerk of the court of general sessions in which such sentence is pronounced to the Director of the Department of Corrections not less than ten days prior to the time fixed in the sentence of the court for the execution of it."
Commissioner changed to director
SECTION 419. Section 24-3-520 of the 1976 Code is amended to read:
"Section 24-3-520. The sheriff of the county in which such convicted person is so sentenced, together with one deputy or more, if in his judgment it is necessary, shall convey such convicted person to the State Penitentiary at Columbia to deliver him to the Director of the Department of Corrections not more than twenty days nor less than two days prior to the time fixed in the judgment for the execution of such condemned person, unless otherwise directed by the Governor or unless a stay of execution has been caused by appeal or the granting of a new trial or other order of a court of competent jurisdiction."
Commissioner changed to director
SECTION 420. Section 24-3-530 of the 1976 Code is amended to read:
"Section 24-3-530. All persons convicted of capital crime and having imposed upon them the sentence of death shall suffer such penalty by electrocution within the walls of the State Penitentiary at Columbia under the direction of the Director of the Department of Corrections."
Board name changed to department
SECTION 421. Section 24-3-540 of the 1976 Code is amended to read:
"Section 24-3-540. The Department of Corrections shall provide a death chamber and all necessary appliances for inflicting such penalty by electrocution and pay the costs thereof out of any funds in its hands. The expense of transporting any such criminal to the State Penitentiary shall be borne by the county in which the offense was committed."
Commissioner changed to director
SECTION 422. Section 24-3-550 of the 1976 Code is amended to read:
"Section 24-3-550. At an execution the executioner and necessary staff, at the discretion of the Director of the Department of Corrections, to carry out the execution properly, a group of not more than two respectable citizens of the State designated by the director, and a group of not more than five representatives of the South Carolina media, one of whom shall represent the dominant wire service, two of whom shall represent the print media, and two of whom shall represent the electronic news media, must be present. The counsel for the convict and a minister of the gospel may be present. The department shall promulgate regulations to govern the selection of media representatives. No audio recorders, cameras, or recording devices are allowed in the Capital Punishment Facility during an execution."
Board duties transferred
SECTION 423. Section 24-3-710 of the 1976 Code is amended to read:
"Section 24-3-710. The director may investigate any misconduct occurring in the State Penitentiary, provide suitable punishment therefor and execute it and take all such precautionary measures as in his judgment will make for the safe conduct and welfare of the institution. The director may suppress any disorders, riots or insurrections that may take place in the penitentiary and prescribe any and all such rules and regulations as in his judgment are reasonably necessary to avoid any such occurrence."
Commissioner changed to director
SECTION 424. Section 24-3-720 of the 1976 Code is amended to read:
"Section 24-3-720. In order to suppress any disorders, riots or insurrection among the prisoners, the Director of the Department of Corrections may require the aid and assistance of any of the citizens of the State."
Commissioner changed to director
SECTION 425. Section 24-3-730 of the 1976 Code is amended to read:
"Section 24-3-730. If any person, when so required by the Director of the Department of Corrections, shall neglect or refuse to give such aid and assistance, he shall pay a fine not exceeding fifty dollars."
Commissioner changed to director
SECTION 426. Section 24-3-740 of the 1976 Code is amended to read:
"Section 24-3-740. Any person so aiding and assisting the Director of the Department of Corrections shall receive a reasonable compensation therefor, to be paid by the department, and allowed him on the settlement of his account."
Commissioner changed to director
SECTION 427. Section 24-3-750 of the 1976 Code is amended to read:
"Section 24-3-750. If, in suppressing any such disorder, riot or insurrection, any person who shall be acting, aiding or assisting in committing the same shall be wounded or killed, the Director of the Department of Corrections, the keeper or any person aiding or assisting him shall be held as justified and guiltless."
Commissioner changed to director
SECTION 428. Section 24-3-760 of the 1976 Code is amended to read:
"Section 24-3-760. In the absence of the Director of the Department of Corrections, the keeper shall have the same power in suppressing disorders, riots and insurrections and in requiring aid and assistance in so doing that is herein given to the director."
Commissioner changed to director
SECTION 429. Section 24-3-920 of the 1976 Code is amended to read:
"Section 24-3-920. The Director of the Department of Corrections shall offer a reward of one hundred dollars for the capture of each escaped convict."
Commissioner changed to director
SECTION 430. Section 24-3-950 of the 1976 Code is amended to read:
"Section 24-3-950. It shall be unlawful for any person to furnish or attempt to furnish any prisoner under the jurisdiction of the Department of Corrections with any matter declared by the director to be contraband. It shall also be unlawful for any prisoner under the jurisdiction of the Department of Corrections to possess any matter declared to be contraband. Matters considered contraband within the meaning of this section shall be those which are determined to be such by the director and published by him in a conspicuous place available to visitors and inmates at each correctional institution. Any person violating the provisions of this section shall be deemed guilty of a felony and, upon conviction, shall be punished by a fine of not less than one thousand dollars nor more than ten thousand dollars or imprisonment for not less than one year nor more than ten years, or both."
Board name changed to department
SECTION 431. Section 24-3-960 of the 1976 Code is amended to read:
"Section 24-3-960. Any moneys or tokens or things of like nature used as money found in the unlawful possession of any prisoner confined in a penal institution under control of the Department of Corrections are hereby declared to be contraband, and any moneys or tokens or things of like nature used as money so seized shall be deposited in the welfare fund of the institution in which the prisoner is confined and shall be the property of such welfare fund."
Commissioner changed to director
SECTION 432. Section 24-7-90 of the 1976 Code is amended to read:
"Section 24-7-90. In case any convict employed by a county supervisor shall become ungovernable or unfit for the labor required of such convict the supervisor may commit such convict to the State Penitentiary or county jail. And it shall be the duty of the Director of the Department of Corrections or the sheriff of the county, as the case may be, to receive any such convict so committed."
Names changed
SECTION 433. Section 24-9-10 of the 1976 Code is amended to read:
"Section 24-9-10. There is hereby established a Jail and Prison Inspection Division under the jurisdiction of the Department of Corrections. The inspectors and such other personnel as may be provided for the division shall be selected by the director of the department."
Names changed
SECTION 434. Section 24-9-20 of the 1976 Code is amended to read:
"Section 24-9-20. The division shall be responsible for inspecting, in conjunction with a representative of the State Fire Marshal, at least annually every facility in this State housing prisoners or pretrial detainees operated by a state agency, county, municipality, or any other political subdivision, and such inspection shall include all phases of operation and fire safety of the respective facilities. The inspection shall be based on standards established by the South Carolina Association of Counties and adopted by the Department of Corrections, and appropriate fire codes and regulations. The division and the inspecting fire marshal shall each prepare a written report on the conditions of the inspected facility. Copies of the reports shall be filed with the governing body of the political subdivision having jurisdiction of the facility inspected, the State Fire Marshal, the governing body of the county, and the county legislative delegation in which such facility is located. All reports shall be filed through the Director of the Department of Corrections."
Names changed
SECTION 435. Section 24-9-30 of the 1976 Code is amended to read:
"Section 24-9-30. (a) If an inspection under this chapter discloses that a local confinement facility does not meet the minimum standards established by the South Carolina Association of Counties and adopted by the Department of Corrections, and the appropriate fire codes and regulations, the Director of the South Carolina Department of Corrections shall notify the governing body of the governmental unit responsible for the local confinement facility. A copy of the written report of the inspection required by this chapter shall also be sent to the resident or presiding judge of the judicial circuit in which the facility is located. The governing body shall promptly meet to consider the inspection report, and the inspection personnel shall appear to advise and consult concerning appropriate corrective action. The governing body shall initiate appropriate corrective action within ninety days or may voluntarily close the local confinement facility or objectionable portion thereof.
(b) If the governing body fails to initiate corrective action within ninety days after receipt of the report of inspection, or fails to correct the disclosed conditions, the Director of the South Carolina Department of Corrections may order that the local confinement facility, or objectionable portion thereof, be closed at such time as the order may designate. The governing body and the resident or presiding judge of the judicial circuit shall be notified by registered mail of the director's order closing a local confinement facility.
(c) The governing body shall have the right to appeal the director's order to the resident or presiding judge of the circuit in which the facility is located. Notice of the intention to appeal shall be given by registered mail to the Director of the South Carolina Department of Corrections and to the resident or presiding judge within fifteen days after receipt of the director's order. The right of appeal shall be deemed waived if notice is not given as herein provided.
(d) The appeal shall be heard before the resident or presiding judge of the circuit who shall give reasonable notice of the date, time and place of the hearing to the Director of the South Carolina Department of Corrections and the governing body concerned. The hearing shall be conducted without a jury in accordance with the rules and procedures of the Circuit Court. The Department of Corrections, the governing body concerned and other responsible local officials shall have a right to be present at the hearing and present evidence which the court deems appropriate to determine whether the local confinement facility met the required minimum standards on the date of the last inspection. The court may affirm, reverse or modify the director's order."
Commissioner changed to director
SECTION 436. Section 24-11-30 of the 1976 Code is amended to read:
"Section 24-11-30. The Director of the State Department of Corrections is hereby authorized and directed to do all things necessary or incidental to the carrying out of the compact in every particular and he may in his discretion delegate this authority to such deputies or assistants as he may designate."
Commissioner changed to director
SECTION 437. Section 24-13-210(c) of the 1976 Code is amended to read:
"(c) If, during the term of imprisonment, a prisoner commits any offense or violates any of the rules of the institution, all or any part of his good conduct time may be forfeited at the discretion of the Director of the Department of Corrections, if the prisoner be confined in facilities of the department, or in the discretion of the local official having charge of prisoners sentenced to terms of imprisonment at the local level. The decision to withhold forfeited good conduct time is solely the responsibility of officials named in this subsection."
Commissioner changed to director
SECTION 438. Section 24-13-230(a) of the 1976 Code is amended to read:
"(a) The Director of the Department of Corrections may allow any prisoner in the custody of the department, who is assigned to a productive duty assignment or who is regularly enrolled and actively participating in an academic, technical, or vocational training program, a reduction from the term of his sentence of zero to one day for every two days he is employed or enrolled. However, no inmate serving the sentence of life imprisonment is entitled to credits under this provision. A maximum annual credit for both work credit and class credit is limited to one hundred eighty days. The amount of credit to be earned for each duty classification or enrollment must be determined by the director and published by him in a conspicuous place available to inmates at each correctional institution. No credits earned under this section may be applied in a manner which would prevent full participation in the department's prerelease program."
Commissioner changed to director
SECTION 439. Section 24-13-270 of the 1976 Code is amended to read:
"Section 24-13-270. The Director of the Department of Corrections and other persons having charge of prisoners who are required to serve a period of six months or more may permit the release of such prisoners on the first day of the month in which their sentences would normally expire and if the first day of the month falls on Saturday, Sunday, or a legal holiday, such prisoners may be released on the last weekday prior to the first of the month which is not a holiday or a Saturday."
Commissioner changed to director
SECTION 440. Section 24-13-640 of the 1976 Code is amended to read:
"Section 24-13-640. Notwithstanding any other provision of law, any state or local prisoner who is not in the highest trusty grade and who is assigned to a work detail outside the confines of any correctional facility shall wear a statewide uniform. The uniform must be of such a design and color as to easily be identified as a prisoner's uniform and stripes must be used in the design. The Department of Corrections Division of Prison Industries shall manufacture the statewide uniform and make it available for sale to the local detention facilities. The Director of the Department of Corrections may determine, in his discretion, that the provisions of this section do not apply to certain prisoners."
Names changed
SECTION 441. Section 24-13-710 of the 1976 Code is amended to read:
"Section 24-13-710. The Department of Corrections and the Department of Probation, Parole and Pardon Services shall jointly develop the policies, procedures, guidelines, and cooperative agreement for the implementation of a supervised furlough program which permits carefully screened and selected inmates who have served the mandatory minimum sentence as required by law or have not committed a violent crime as defined in Section 16-1-60 nor committed the crime of criminal sexual conduct in the third degree as defined in Section 16-3-654 or the crime of committing or attempting a lewd act upon a child under the age of fourteen as defined in Section 16-15-140 to be released on furlough prior to parole eligibility and under the supervision of state probation and parole agents with the privilege of residing in an approved residence and continuing treatment, training, or employment in the community until parole eligibility or expiration of sentence, whichever is earlier. The department and the Department of Probation, Parole and Pardon Services shall assess a fee sufficient to cover the cost of the participant's supervision and any other financial obligations incurred because of his participation in the supervised furlough program as provided by this article. The two departments shall jointly develop and approve written guidelines for the program to include, but not be limited to, the selection criteria and process, requirements for supervision, conditions for participation, and removal. The cooperative agreement between the two departments shall specify the responsibilities and authority for implementing and operating the program. Inmates approved and placed on the program must be under the supervision of agents of the Department of Probation, Parole and Pardon Services who are responsible for insuring the inmate's compliance with the rules, regulations, and conditions of the program as well as monitoring the inmate's employment and participation in any of the prescribed and authorized community-based correctional programs such as vocational rehabilitation, technical education, and alcohol/drug treatment. Eligibility criteria for the program include, but are not limited to, all of the following requirements:
(1) maintain a clear disciplinary record for at least six months prior to consideration for placement on the program;
(2) demonstrate to Department of Corrections' officials a general desire to become a law-abiding member of society;
(3) satisfy any other reasonable requirements imposed upon him by the Department of Corrections;
(4) have an identifiable need for and willingness to participate in authorized community-based programs and rehabilitative services;
(5) have been committed to the State Department of Corrections with a total sentence of five years or less as the first or second adult commitment for a criminal offense for which the inmate received a sentence of one year or more. The Department of Corrections shall notify victims pursuant to Section 16-3-1530(c) as well as the sheriff's office of the place to be released before releasing inmates through any supervised furlough program.
These requirements do not apply to the crimes referred to in this section."
Technical corrections
SECTION 442. Section 24-13-940 of the 1976 Code is amended to read:
"Section 24-13-940. The official administering the work/punishment program may contract with the South Carolina Department of Corrections or with other governmental bodies to allow inmates committed to serve sentences in the custody of the department or in other local correctional facilities to participate in the program and be confined in the local correctional institution of the receiving official."
Commissioner changed to director
SECTION 443. Section 24-13-1310(3) of the 1976 Code is amended to read:
"(3) `Director' means the Director of the Department of Corrections."
Commissioner changed to director
SECTION 444. Section 24-13-1320 of the 1976 Code is amended to read:
"Section 24-13-1320. (A) The director of the department, guided by consideration for the safety of the community and the welfare of the inmate, shall promulgate regulations, according to procedures set forth in the Administrative Procedures Act, for the shock incarceration program. The regulations must reflect the purpose of the program and include, but are not limited to, selection criteria, inmate discipline, programming and supervision, and program structure and administration.
(B) For each reception center the director shall appoint or cause to be appointed a shock incarceration selection committee which must include at least one representative of the Department of Probation, Parole and Pardon Services and which shall meet on a regularly scheduled basis to review all applications for a program.
(C) A program may be established only at an institution classified by the director as a shock incarceration facility.
(D) The department shall undertake studies and prepare reports periodically on the impact of a program and on whether the programmatic objectives are met."
Commissioner changed to director
SECTION 445. Section 24-13-1330(B) and (C) of the 1976 Code are amended to read:
"(B) The committee shall consider input received from law enforcement agencies, victims, and others in making its decision for approval or disapproval of participation. If the committee determines that an inmate's participation in a program is consistent with the safety of the community, the welfare of the applicant, and the regulations of the department, the committee shall forward the application to the director or his designee for approval or disapproval.
(C) An applicant may not participate in a program unless he agrees to be bound by all of its terms and conditions and indicates this agreement by signing the following: `I accept the foregoing program and agree to be bound by its terms and conditions. I understand that my participation in the program is a privilege that may be revoked at the sole discretion of the director. I understand that I shall complete the entire program successfully to obtain a certificate of earned eligibility upon the completion of the program, and if I do not complete the program successfully, for any reason, I will be transferred to a nonshock incarceration correctional facility to continue service of my sentence'."
Commissioner changed to director
SECTION 446. Section 24-13-1340(B) of the 1976 Code is amended to read:
"(B) The director shall submit his findings, along with recommendations for sentencing, to the court within fifteen working days after an inmate has been received into the custody of the department."
Commissioner changed to director
SECTION 447. Section 24-13-1520(1) and (2) of the 1976 Code are amended to read:
"(1) `Department' means, in the case of a juvenile offender, the Department of Juvenile Justice and, in the case of an adult offender, the Department of Probation, Parole and Pardon Services, the Department of Corrections, and any other law enforcement agency created by law.
(2) `Court' means a circuit or family court having criminal or juvenile jurisdiction to sentence an individual to incarceration for a violation of law, the Department of Probation, Parole and Pardon Services, Board of Juvenile Parole, and the Department of Corrections."
Department restructured
SECTION 448. Section 24-13-1590 of the 1976 Code is amended to read:
"Section 24-13-1590. Nothing in this article:
(1) applies to a person, regardless of age, who violates the illicit narcotic drugs and controlled substances laws of this State; or
(2) diminishes the lawful authority of the courts of this State, the Department of Juvenile Justice, or the Department of Probation, Parole and Pardon Services to regulate or impose conditions for probation or parole."
Commissioner changed to director
SECTION 449. Section 24-19-10(c) of the 1976 Code is amended to read:
"(c) `Director' means the Director of the Department of Corrections."
Commissioner changed to director
SECTION 450. Section 24-19-20 of the 1976 Code is amended to read:
"Section 24-19-20. There is hereby created within the Department of Corrections a Youthful Offender Division. The division shall be staffed by appointees and designees of the Director of the Department of Corrections. The staff members shall be delegated such administrative duties and responsibilities as may be required to carry out the purpose of this chapter."
Commissioner changed to director
SECTION 451. Section 24-19-30 of the 1976 Code is amended to read:
"Section 24-19-30. The division shall consider problems of treatment and correction; shall consult with and make recommendations to the director with respect to general treatment and correction policies and procedures for committed youthful offenders, and recommend orders to direct the release of youthful offenders conditionally under supervision and the unconditional discharge of youthful offenders; and take such further action and recommend such other orders to the director as may be necessary or proper to carry out the purpose of this chapter."
Technical corrections
SECTION 452. Section 24-19-40 of the 1976 Code is amended to read:
"Section 24-19-40. The division shall adopt such rules as the South Carolina Department of Corrections approves and promulgate them as they apply directly or indirectly to its procedure."
Commissioner changed to director
SECTION 453. Section 24-19-60 of the 1976 Code is amended to read:
"Section 24-19-60. Youthful offenders shall undergo treatment in minimum security institutions, including training schools, hospitals, farms, forestry and other camps, including vocational training facilities and other institutions and agencies that will provide the essential varieties of treatment.
The director, as far as is advisable and necessary, shall designate, set aside and adopt institutions and agencies under the control of the department and the division for the purpose of carrying out the objectives of this chapter. The director may further maintain a cooperative program with the Department of Vocational Rehabilitation involving the operation of reception and evaluation centers, utilizing funds and staffing services of the department which are appropriate for matching with Federal Vocational Rehabilitation funds.
Insofar as practical and to the greatest degree possible, such institutions, facilities and agencies shall be used only for the treatment of committed youthful offenders, and such youthful offenders shall be segregated from other offenders, and classes of committed youthful offenders shall be segregated according to their needs for treatment."
Commissioner changed to director
SECTION 454. Section 24-19-80 of the 1976 Code is amended to read:
"Section 24-19-80. The director may establish agreements with the Department of Vocational Rehabilitation for the operation of reception and evaluation centers. The reception and evaluation centers shall make a complete study of each committed youthful offender, including a mental and physical examination, to ascertain his personal traits, his capabilities, pertinent circumstances of his school, family life, any previous delinquency or criminal experience, and any mental or physical defect or other factor contributing to his delinquency. In the absence of exceptional circumstances, such study shall be completed within a period of thirty days. The reception and evaluation center shall forward to the director and to the division a report of its findings with respect to the youthful offender and its recommendations as to his treatment. At least one member of the division shall, as soon as practicable after commitment, interview the youthful offender, review all reports concerning him and make such recommendations to the director and to the division as may be indicated."
Commissioner changed to director
SECTION 455. Section 24-19-90 of the 1976 Code is amended to read:
"Section 24-19-90. On receipt of the report and recommendations from the Reception and Evaluation Center and from the members of the division, the director may:
(a) recommend to the division that the committed youthful offender be released conditionally under supervision; or
(b) allocate and direct the transfer of the committed youthful offender to an agency or institution for treatment; or
(c) order the committed youthful offender confined and afforded treatment under such conditions as he believes best designed for the protection of the public."
Commissioner changed to director
SECTION 456. Section 24-19-100 of the 1976 Code is amended to read:
"Section 24-19-100. The director may transfer at any time a committed youthful offender from one agency or institution to any other agency or institution."
Commissioner changed to director
SECTION 457. Section 24-19-110 of the 1976 Code is amended to read:
"Section 24-19-110. The division may at any time after reasonable notice to the director release conditionally under supervision a committed youthful offender. When, in the judgment of the director, a committed youthful offender should be released conditionally under supervision he shall so report and recommend to the division.
The division may regularly assess a reasonable fee to be paid by the youthful offender who is on conditional release to offset the cost of his supervision.
The division may discharge a committed youthful offender unconditionally at the expiration of one year from the date of conditional release."
Board changed to department
SECTION 458. Section 24-19-160 of the 1976 Code is amended to read:
"Section 24-19-160. Nothing in this chapter shall limit or affect the power of any court to suspend the imposition or execution of any sentence and place a youthful offender on probation.
Nothing in this chapter shall be construed to amend, repeal or affect the jurisdiction of the Department of Probation, Parole and Pardon Services. For parole purposes, a sentence pursuant to Section 24-19-50 (c) shall be considered a sentence for six years."
Department restructured
SECTION 459. Section 24-21-10 of the 1976 Code is amended to read:
"Section 24-21-10. (A) The Department of Probation, Parole and Pardon Services, hereafter referred to as the `department', is governed by the Director of Probation, Parole and Pardon Services, hereafter referred to as the `director'. The director must be appointed by the Governor with the advice and consent of the Senate.
(B) The Board of Probation, Parole and Pardon Services is composed of seven members. The terms of office of the members are for six years and until their successors are appointed and qualify. Six of the seven members must be appointed from each of the congressional districts and one member must be appointed at-large. Vacancies must be filled by gubernatorial appointment with the advice and consent of the Senate for the unexpired term. If a vacancy occurs during a recess of the Senate, the Governor may fill the vacancy by appointment for the unexpired term pending the consent of the Senate. A chairman must be elected annually by a majority of the membership of the board. The chairman may serve consecutive terms."
Removal of director and board
SECTION 460. Section 24-21-11 of the 1976 Code is amended to read:
"Section 24-21-11. The director and members of the board shall be subject to removal by the Governor pursuant to the provisions of Section 1-3-240."
Technical changes
SECTION 461. Section 24-21-12 of the 1976 Code is amended to read:
"Section 24-21-12. The members of the board shall draw no salaries, but each member shall be entitled to such per diem as may be authorized by law for boards, commissions, and committees, plus actual and necessary expenses incurred pursuant to the discharge of official duties."
Director's duties
SECTION 462. Section 24-21-13 of the 1976 Code is amended to read:
"Section 24-21-13. (A) It is the duty of the director to oversee, manage, and control the department. The director shall develop written policies and procedures for the following:
(1) the supervising of offenders on probation, parole, and other offenders released from incarceration prior to the expiration of their sentence;
(2) the granting of paroles and pardons;
(3) the operation of community based correctional programs; and
(4) the operation of public work sentence programs for offenders as provided in item (1) of this subsection. This program also may be utilized as an alternative to technical revocations. The director shall establish priority programs for litter control along state and county highways. This must be included in the `public service work' program.
(B) It is the duty of the board to consider cases for parole, pardon, and any other form of clemency provided for under law."
Commissioner changed to director
SECTION 463. Section 24-21-60 of the 1976 Code is amended to read:
"Section 24-21-60. Every city, county, or state official or department shall assist and cooperate to further the objectives of this chapter. The board, the director of the department, and the probation agents may seek the cooperation of officials and departments and especially of the sheriffs, jailers, magistrates, police officials, and institutional officers. The director may conduct surveys of the State Penitentiary, county jails, and camps and obtain information to enable the board to pass intelligently upon all applications for parole. The Director of the Department of Corrections and the wardens, jailers, sheriffs, supervisors, or other officers in whose control a prisoner may be committed must aid and assist the director and the probation agents in the surveys."
Commissioner changed to director
SECTION 464. Section 24-21-70 of the 1976 Code is amended to read:
"Section 24-21-70. The Director of the Department of Corrections, when a prisoner is confined in the State Penitentiary, the sheriff of the county, when a person is confined in the county jail, and the county supervisor or chairman of the governing body of the county if there is no county supervisor, when a prisoner is confined upon a work detail of a county, must keep a record of the industry, habits, and deportment of the prisoner, as well as other information requested by the board or the director and furnish it to them upon request."
Duties restructured
SECTION 465. Section 24-21-220 of the 1976 Code is amended to read:
"Section 24-21-220. The director shall be vested with the exclusive management and control of the department and shall be responsible for the management of the department and for the proper care, treatment, supervision, and management of offenders under its control. The director shall manage and control the department and it shall be the duty of the director to carry out the policies of the department. The director is responsible for scheduling board meetings, assuring that the proper cases and investigations are prepared for the board, maintaining the board's official records, and performing other administrative duties relating to the board's activities. The director must employ within his office such personnel as may be necessary to carry out his duties and responsibilities including the functions of probation and parole supervision, community based programs, financial management, research and planning, staff development and training, and internal audit. The director shall make annual written reports to the board, the Governor, and the General Assembly providing statistical and other information pertinent to the department's activities."
Commissioner changed to director
SECTION 466. Section 24-21-221 of the 1976 Code is amended to read:
"Section 24-21-221. The director must give a thirty-day written notice of any board hearing during which the board will consider parole for a prisoner to the following persons:
(1) any victim of the crime who suffered damage to his person as a result thereof or if such victim is deceased, to members of his immediate family to the extent practicable;
(2) the solicitor who prosecuted the prisoner or his successor in the jurisdiction in which the crime was prosecuted; and
(3) the law enforcement agency that was responsible for the arrest of the prisoner concerned."
Names and duties changed
SECTION 467. Section 24-21-230 of the 1976 Code is amended to read:
"Section 24-21-230. The director must employ such probation agents as required for service in the State and such clerical assistants as may be necessary. Such probation and parole agents must take and pass such psychological and qualifying examinations as directed by the director. The director must ensure that each probation agent receives adequate training. Until such initial employment requirements are met, no person may take the oath of a probation agent nor exercise the authority granted thereto."
Names changed
SECTION 468. Section 24-21-250 of the 1976 Code is amended to read:
"Section 24-21-250. The probation agents must be paid salaries, to be fixed by the department, payable semimonthly, and also be paid traveling and other necessary expenses incurred in the performance of their official duties when the expense accounts have been authorized and approved by the director."
Names changed
SECTION 469. Section 24-21-260 of the 1976 Code is amended to read:
"Section 24-21-260. Probation agents appointed under Section 24-21-230 must be assigned to serve in courts or districts or other places the director may determine."
Names changed
SECTION 470. Section 24-21-280 of the 1976 Code is amended to read:
"Section 24-21-280. A probation agent must investigate all cases referred to him for investigation by the judges or director and report in writing. He must furnish to each person released on probation under his supervision a written statement of the conditions of probation and must instruct him regarding them. He must keep informed concerning the conduct and condition of each person on probation or parole under his supervision by visiting, requiring reports, and in other ways and must report in writing as often as the court or director may require. He must use practicable and suitable methods to aid and encourage persons on probation or parole to bring about improvement in their conduct and condition. A probation agent must keep detailed records of his work, make reports in writing, and perform other duties as the director may require. A probation agent must have, in the execution of his duties, the power to issue an arrest warrant or a citation charging a violation of conditions of supervision, the powers of arrest, and to the extent necessary the same right to execute process given by law to sheriffs. In the performance of his duties of probation and parole investigation and supervision, he is regarded as the official representative of the court and the department."
Commissioner changed to director
SECTION 471. Section 24-21-290 of the 1976 Code is amended to read:
"Section 24-21-290. All information and data obtained in the discharge of his official duty by a probation agent is privileged information, is not receivable as evidence in a court, and may not be disclosed directly or indirectly to anyone other than the judge or others entitled under this chapter to receive reports unless ordered by the court or the director."
Board changed to director
SECTION 472. Section 24-21-485 of the 1976 Code is amended to read:
"Section 24-21-485. In order for the department to establish and maintain restitution centers, the director may:
(1) develop policies and procedures for the operation of restitution centers;
(2) fund other management options advantageous to the State including, but not limited to, contracting with public or nonpublic entities for management of restitution centers;
(3) lease buildings;
(4) develop standards for disciplinary rules to be imposed on residents of restitution centers;
(5) develop standards for the granting of emergency furloughs to participants."
Commissioner changed to director
SECTION 473. Section 24-21-620 of the 1976 Code is amended to read:
"Section 24-21-620. Within the ninety-day period preceding a prisoner having served one-fourth of his sentence, the board, either acting in a three-member panel or meeting as a full board, shall review the case, regardless of whether or not any application has been made therefor, for the purpose of determining whether or not such prisoner is entitled to any of the benefits provided for in this chapter; provided, that in cases of prisoners in confinement due to convictions for nonviolent crimes, an administrative hearing officer may be appointed by the director to review the case who must submit to the full board written findings of fact and recommendations which shall be the basis for a determination by the board. Upon an affirmative determination, the prisoner must be granted a provisional parole or parole. Upon a negative determination, the prisoner's case shall be reviewed every twelve months thereafter for the purpose of such determination."
Commissioner changed to director
SECTION 474. Section 24-21-645 of the 1976 Code is amended to read:
"Section 24-21-645. The board may issue an order authorizing the parole which must be signed either by a majority of its members or by all three members meeting as a parole panel on the case ninety days prior to the effective date of the parole; provided, that at least two-thirds of the members of the board must authorize and sign orders authorizing parole for persons convicted of a violent crime as defined in Section 16-1-60. A provisional parole order shall include the terms and conditions, if any, to be met by the prisoner during the provisional period and terms and conditions, if any, to be met upon parole. Upon satisfactory completion of the provisional period, the director or one lawfully acting for him must issue an order which, if accepted by the prisoner, shall provide for his release from custody. Provided, that upon a negative determination of parole, prisoners in confinement for a violent crime as defined in Section 16-1-60 must have their cases reviewed every two years for the purpose of a determination of parole."
Commissioner changed to director
SECTION 475. Section 24-21-650 of the 1976 Code is amended to read:
"Section 24-21-650. The board shall issue an order authorizing the parole which must be signed by at least a majority of its members with terms and conditions, if any, but at least two-thirds of the members of the board must sign orders authorizing parole for persons convicted of a violent crime as defined in Section 16-1-60. The director, or one lawfully acting for him, then must issue a parole order which, if accepted by the prisoner, provides for his release from custody. Upon a negative determination of parole, prisoners in confinement for a violent crime as defined in Section 16-1-60 must have their cases reviewed every two years for the purpose of a determination of parole."
Commissioner changed to director
SECTION 476. Section 24-21-930 of the 1976 Code is amended to read:
"Section 24-21-930. An order of pardon must be signed by at least two-thirds of the members of the board. Upon the issue of the order by the board, the director, or one lawfully acting for him, must issue a pardon order which provides for the restoration of the pardon applicant's civil rights."
Board changed to department
SECTION 477. Section 24-22-20(a) of the 1976 Code is amended to read:
"(a) `Adult criminal offender management system' means the system developed by the State Department of Corrections and the State Department of Probation, Parole and Pardon Services which permits carefully screened inmates to be identified, transferred into Department of Corrections Reintegration Centers and placed in Department of Probation, Parole and Pardon Services Community Control Strategies."
Board changed to department
SECTION 478. Section 24-22-160 of the 1976 Code is amended to read:
"Section 24-22-160. The Department of Corrections and the Budget and Control Board shall establish the operating capacities of the male prison population and the female prison population of the prison system operated by the Department of Corrections and shall, at least quarterly, certify existing operating capacities or establish changed or new operating capacities."
Duties transferred and names changed
SECTION 479. Section 24-23-40 of the 1976 Code is amended to read:
"Section 24-23-40. The community corrections plan shall provide for:
(a) The department's development, implementation, monitoring and evaluation of statewide policies, procedures and agreements with state agencies, such as the Departments of Vocational Rehabilitation, Mental Health, and the Department of Alcohol and Other Drug Abuse Services, for purposes of coordination and referral of probationers and parolees for rehabilitation services.
(b) The department's development of specific guidelines for the vigorous monitoring of restitution orders and fines to increase the efficiency of collection and development of a systematic reporting system so as to notify the judiciary of restitution and fine payment failures on a regular basis.
(c) The department's development of a program development-and-evaluation capability so that the department can monitor and evaluate the effectiveness of the above programs as well as to conduct research and special studies on such issues as parole outcomes, revocations and recidivism.
(d) The department's development of adequate training and staff development for its employees."
Board changed to department
SECTION 480. Section 24-23-110 of the 1976 Code is amended to read:
"Section 24-23-110. Judges of the Court of General Sessions may suspend the imposition or the execution of a sentence and may impose a fine and a restitution without requiring probation. The department shall implement the necessary policies and procedures to ensure the payment of such fines and restitution and report to the court failures to pay."
Board changed to department
SECTION 481. The second paragraph of Section 24-23-115 of the 1976 Code is amended to read:
"The Department of Probation, Parole and Pardon Services shall establish by regulation pursuant to the Administrative Procedures Act a definition of the term `public service work', and a mechanism for supervision of persons performing public service work."
Board changed to department or director
SECTION 482. The second paragraph of Section 24-23-220 of the 1976 Code is amended to read:
"Assessments imposed as a condition of supervision upon release from prison as specified in Section 24-23-210 must be collected by the supervising agent who shall transmit those funds to the Department of Probation, Parole and Pardon Services where it must be deposited in the state treasury. The county treasurer, after duly noting and recording the receipt of the payments, shall transfer those funds to the State Treasurer who shall deposit them in the State's general fund. Assessments collected by municipal courts must be paid monthly to the municipal financial officer who, after duly noting and recording the receipt of the payments, shall transfer those funds to the State Treasurer as provided in this section. From these funds, an amount equal to one-half of the amount deposited in fiscal year 1986-87 must be appropriated to the department for the purpose of developing and operating community corrections programs. The remainder of the funds must be deposited in the Victim's Compensation Fund. The director shall monitor the collection and reporting of these assessments imposed as a condition of supervision and assure that they are duly transferred to the State Treasurer."
Names changed
SECTION 483. Section 24-25-40 of the 1976 Code is amended to read:
"Section 24-25-40. The Palmetto Unified School District No. 1 shall be under the control and management of a board of nine trustees who shall operate the district under the supervision of the State Department of Corrections. Four members of the school board shall be appointed by the Director of the Department of Corrections, four members of the school board shall be appointed by the State Superintendent of Education, and one member of the school board shall be appointed by the Governor. The members of the board shall be appointed for terms of four years each and until their successors are appointed and qualify; except that of those first appointed, the members appointed by the Director of the Department of Corrections and the members appointed by the State Superintendent of Education shall be appointed for terms of one, two, three and four years, respectively, such terms to be designated by the Director of the Department of Corrections and the State Superintendent of Education when making such appointments. The member initially appointed by the Governor also shall be appointed for a term of four years. Vacancies on the board shall be filled for the remainder of the unexpired term by appointment in the same manner as provided for the original appointment."
"Board" changed to "director of the department"
SECTION 484. Section 24-25-50 of the 1976 Code is amended to read:
"Section 24-25-50. The members of the school board may be removed at any time for good cause by the Director of the Department of Corrections. The failure of any member of the school board to attend at least three consecutive meetings thereof, unless excused by formal vote of the school board, may be construed by the Director of the Department of Corrections as a resignation from the school board."
Names changed
SECTION 485. Section 24-25-70 of the 1976 Code is amended to read:
"Section 24-25-70. With the consent and concurrence of the Director of the Department of Corrections, the board of the school district shall operate as executory agent for the schools under its jurisdiction and shall perform administrative functions as follows:
(1) establish goals and objectives for the operation of the district;
(2) enter into agreements and contracts with other school districts, technical schools, colleges and universities;
(3) establish academic education programs ranging from primary through post high school, as well as special education for the handicapped and mentally retarded;
(4) establish vocational and trade courses as appropriate for preparation for employment;
(5) determine physical facilities needed to carry out all education programs;
(6) review and approve applications for grants, donations, contracts and other agreements from public or private sources;
(7) establish a twelve-month school program and teachers' pay schedule based on the state and average school supplement pay scales;
(8) present an annual educational budget to the Department of Corrections for submission to the General Assembly. The Department of Corrections when making its annual budget request shall incorporate as a line item the budget of the district within its request. To the extent permitted by law, any funds which may be appropriated by the General Assembly for the operation of the district shall not prohibit the district from securing any applicable federal funds or other funds which are available."
Division of Veterans' Affairs in the Office of the Governor
SECTION 486. Chapter 11, Title 25 of the 1976 Code is amended to read:
"CHAPTER 11
Division of Veterans' Affairs
Section 25-11-10. A Division of Veterans' Affairs in the Office of the Governor is hereby created for the purpose of assisting ex-servicemen in securing the benefits to which they are entitled under the provisions of federal legislation and under the terms of insurance policies issued by the federal government for their benefit. This division shall be under the direct supervision of a panel consisting of the Governor as chairman, the Attorney General for the purpose of giving legal advice, and the Adjutant and Inspector General.
Section 25-11-20. For the purpose of carrying on this work the Governor shall appoint a Director of the Division of Veterans' Affairs, who is charged with the duty of assisting all ex-servicemen, regardless of the wars in which their service may have been rendered, in filing, presenting, and prosecuting to final determination all claims which they have for money compensation, hospitalization, training, and insurance benefits under the terms of federal legislation. The Director of the Division of Veterans' Affairs must be a person versed in federal legislation relating to these matters and the rules, regulations, and practice of the Veterans Administration as created by Congress and must be appointed by the Governor. Before the appointment, the Governor shall receive a recommendation from (1) the executive committee of the American Legion, Department of South Carolina, (2) the Veterans of Foreign Wars of the United States, Department of South Caroina, and (3) the Disabled American Veterans. The Governor is not required to appoint the person recommended and he is subject to removal by the Governor pursuant to the provisions of Section 1-3-240(B).
Section 25-11-30. The office of the division herein provided for shall be located in Columbia in space provided by the State Budget and Control Board.
Section 25-11-40. Subject to the recommendation of a majority of the Senators representing the county and a majority of the House members representing the county, the Director of the Division of Veterans' Affairs shall appoint a county veterans affairs officer for each county in the State, whose terms of office shall begin July first of each odd-numbered year and shall continue for a term of two years and until their successors shall be appointed. Any such county veterans affairs officer shall be subject to removal at any time by a majority of the Senators representing the county and a majority of the House members representing the county.
Section 25-11-50. The Director of the Division of Veterans' Affairs shall establish uniform methods and procedure for the performance of service work among the several county officers, maintain contact and close cooperation with such officers, and provide assistance, advice and instructions with respect to changes in law and regulations and administrative procedure in relation to the application of such laws and he may require from time to time reports from such county veterans affairs officers, reflecting the character and progress of their official duties.
Section 25-11-60. The county veterans affairs officers shall render semiannually a complete report of their acts and doings to the county legislative delegation of their respective counties upon uniform forms to be furnished by the Director of the Division of Veterans' Affairs.
Section 25-11-70. The Division of Veterans' Affairs shall assist the South Carolina Agent Orange Advisory Council and the Agent Orange Information and Assistance Program at the Division of Health and Environmental Control in carrying out the purposes of Chapter 40 of Title 44. The Division of Veterans' Affairs shall:
(1) refer veterans to appropriate state and federal agencies or other available resources for treatment of adverse health conditions which may have resulted from possible exposure to chemical agents, including Agent Orange;
(2) assist veterans in filing compensation claims for disabilities that may have resulted from possible exposure to chemical agents, including Agent Orange;
(3) communicate the concerns of veterans related to exposure to chemical agents, including Agent Orange, to appropriate state and federal officials. The division may request that the Attorney General represent a class of individuals composed of veterans who may have suffered adverse health conditions as a result of possible exposure to chemical agents, including Agent Orange, in a suit for release of information relating to the exposure to these chemicals during military service and for release of individual medical records."
Reference revised
SECTION 487. Section 27-18-20(1) of the 1976 Code is amended to read:
"(1) `Administrator' means The South Carolina Department of Revenue and Taxation, its agents, or representatives."
Reference revised
SECTION 488. Section 27-31-100(f) of the 1976 Code is amended to read:
"(f) A description of the full legal rights and obligations, both currently existing and which may occur, of the apartment owner, the co-owners, and the person establishing the regime. The master deed of any horizontal property regime developed under the provisions of this chapter that contains any submerged land shall contain a notice of restriction stating that all activities on or over and all uses of the submerged land or other critical areas are subject to the jurisdiction of the South Carolina Department of Health and Environmental Control, including, but not limited to, the requirement that any activity or use must be authorized by the South Carolina Department of Health and Environmental Control. The notice shall further state that any owner is liable to the extent of his ownership for any damages to, any inappropriate or unpermitted uses of, and any duties or responsibilities concerning any submerged land, coastal waters, or any other critical area."
Name change
SECTION 489. Section 30-4-40(a)(10) of the 1976 Code is amended to read:
"(10) Any standards used or to be used by the South Carolina Department of Revenue and Taxation for the selection of returns for examination, or data used or to be used for determining such standards, if the commission determines that such disclosure would seriously impair assessment, collection, or enforcement under the tax laws of this State."
Name change
SECTION 490. Section 31-1-30 of the 1976 Code is amended to read:
"Section 31-1-30. The Director of the Department of Commerce, hereafter in this chapter sometimes called the director, may:
(1) study housing conditions and needs throughout the State to determine in what areas congested and unsanitary housing conditions constitute a menace to the health, safety, morals, welfare and reasonable comfort of the citizens of the State;
(2) prepare programs for correcting such conditions;
(3) collect and distribute information relating to housing;
(4) investigate all matters affecting the cost of construction or production of dwellings;
(5) study means of lowering rents of dwellings by securing economy in the construction and arrangement of buildings;
(6) recommend and approve the areas within which or adjacent to which the construction of housing projects by limited dividend housing companies may be undertaken; and
(7) cooperate with local housing officials and planning commissions or similar bodies in cities and other localities in the development of projects they at any time may have under consideration."
Name change
SECTION 491. Section 31-1-120 of the 1976 Code is amended to read:
"Section 31-1-120. The purposes for which a limited dividend housing corporation is to be formed shall be as follows: To acquire, construct, maintain and operate housing projects when authorized by and subject to the supervision of the director."
Name change
SECTION 492. Section 31-1-140 of the 1976 Code is amended to read:
"Section 31-1-140. The articles of a limited dividend housing corporation shall contain a declaration (a) that the corporation has been organized to serve a public purpose and that it shall remain at all times subject to the supervision and control of the director or of other appropriate state authority, (b) that all real estate acquired by it and all structures erected by it shall be deemed to be acquired for the purpose of promoting the public health and safety and subject to the provisions of the State Housing Law and (c) that the stockholders of the corporation shall be deemed, when they subscribe to and receive the stock thereof, to have agreed that they shall at no time receive or accept from the company, in repayment of their investment in its stock, any sums in excess of the par value of the stock, together with cumulative dividends at the rate of six percent per annum and that any surplus in excess of such amount if the company shall be dissolved, shall revert to the State."
Name change
SECTION 493. Section 31-1-150 of the 1976 Code is amended to read:
"Section 31-1-150. The articles of a limited dividend housing corporation may authorize the issuance of income debenture certificates bearing no greater interest than six percent per annum. After the incorporation of a limited dividend housing corporation, the directors thereof may, with the consent of two thirds of the holders of any preferred stock that may be issued and outstanding, offer to the stockholders of the company the privilege of exchanging their preferred and common stock in such quantities and at such times as may be approved by the director for such income debenture certificates, whose value shall not exceed the par value of the stock exchanged therefor."
Name change
SECTION 494. Section 31-1-160 of the 1976 Code is amended to read:
"Section 31-1-160. No limited dividend housing company incorporated under this chapter shall issue stock, bonds or income debentures, except for money, services or property actually received for the use and lawful purposes of the corporation. No stock, bonds or income debentures shall be issued for property or services except upon a valuation approved by the director and such valuation shall be used in computing actual or estimated cost.
The director may permit stock or income debentures to be issued for working capital to be used in connection with such project to any amount not exceeding three percent of the estimated total cost or three percent of the actual cost, if actual cost should exceed estimated cost, of a project."
Name change
SECTION 495. Section 31-1-180 of the 1976 Code is amended to read:
"Section 31-1-180. No limited dividend housing company incorporated under this chapter shall:
(1) acquire any real property or interest therein unless it shall first have obtained from the director a certificate that such acquisition is necessary or convenient for the public purpose defined in Section 31-1-140;
(2) sell, transfer, assign or lease any real property without first having obtained the consent of the director, except that leases conforming to the regulations and rules of the Department of Commerce and for actual occupancy by the lessees may be made without the consent of the director; (3) pay interest returns on its mortgage indebtedness and its income debenture certificates at a higher rate than six percent per annum;
(4) issue its stock, debentures and bonds covering any project undertaken by it in an amount greater in the aggregate than the total actual final cost of such project, including the lands, improvements, charges for financing and supervision approved by the director and interest and other carrying charges during construction and an allowance for working capital to be approved by the director but not exceeding three percent of the estimated cost or of the total actual final cost if the final cost of the project shall be greater than the estimated cost;
(5) mortgage any real property without first having obtained the consent of the director;
(6) issue any securities or evidences of indebtedness without first having obtained the approval of the director and the approval of the Insurance Commissioner of South Carolina;
(7) use any building erected or acquired by it for other than housing purposes, except that when permitted by law the story of the building above the cellar or basement and the space below such story may be used for stores, commercial, cooperative or community purposes and when permitted by law the roof may be used for cooperative or community purposes;
(8) charge or accept any rental fee or other charge for housing accommodations in any building constructed, acquired, operated or managed by it in excess of the prices prescribed by the director;
(9) enter into contracts for the construction of housing projects or for the payments of salaries to officers or employees except subject to the inspection and revision of the director and under such regulations as the Department of Commerce from time to time may prescribe;
(10) voluntarily dissolve without first having obtained the consent of the director; or
(11) make any guaranty without the approval of the director."
Name change
SECTION 496. Section 31-1-180(6) of the 1976 Code is amended to read:
"(6) issue any securities or evidences of indebtedness without first having obtained the approval of the director and the approval of the Director of the Department of Insurance, or his designee;"
Name change
SECTION 497. Section 31-1-200 of the 1976 Code is amended to read:
"Section 31-1-200. In pursuance of its power to supervise and regulate the operations of limited dividend housing companies incorporated under this chapter the director may:
(1) order any such corporation to make, at its expense, such repairs and improvements as will preserve or promote the health and safety of the occupants of buildings and structures owned or operated by such corporations;
(2) order all such corporations to do such acts as may be necessary to comply with the provisions of the law, the rules and regulations adopted by the Department of Commerce or the terms of any project approved by the director or to refrain from doing any acts in violation thereof;
(3) examine all such corporations and keep informed as to their general condition, their capitalization and the manner in which their property is constructed, leased, operated or managed;
(4) either through its members or agents duly authorized by it, enter in or upon and inspect the property, equipment, buildings, plants, offices, apparatus and devices of any such corporation, examine all books, contracts, records, documents and papers of any such corporation and by subpoena duces tecum compel the production thereof;
(5) in its discretion prescribe uniform methods and forms of keeping accounts, records and books to be observed by such corporations and prescribe by order accounts in which particular outlays and receipts shall be entered, charged or credited;
(6) require every such corporation to file with the director an annual report setting forth such information as the director may require, verified by the oath of the president and general manager or receiver, if any, thereof or by the person required to file such report, such report to be in the form, cover the period and be filed at the time prescribed by the director;
(7) require specific answers to questions upon which the director may desire information and require such corporation to file periodic reports in the form covering the period and at the time prescribed by the director; and
(8) from time to time make, amend and repeal rules and regulations for carrying into effect the provisions of this chapter."
Name change
SECTION 498. Section 31-1-210 of the 1976 Code is amended to read:
"Section 31-1-210. The director may investigate the affairs of limited dividend housing companies incorporated under this chapter and the dealings, transactions or relationships of such companies with other persons. Any of the investigations provided for in this chapter may be conducted by the director or by a committee to be appointed by the director. Each member of the committee may administer oaths, take affidavits and make personal inspections of all places to which their duties relate. The committee may subpoena and require the attendance of witnesses and the production of books and papers relating to the investigations and inquiries authorized in this chapter, examine them in relation to any matter it has power to investigate and issue commissions for the examination of witnesses who are out of the State or unable to attend before the committee or excused from attendance."
Name change
SECTION 499. Section 31-1-220 of the 1976 Code is amended to read:
"Section 31-1-220. The director may charge and collect from a limited dividend housing corporation, incorporated under this chapter, reasonable fees in accordance with the rates to be established by the rules of the Department of Commerce:
(1) for the examination of plans and specifications and the supervision of construction, an amount not to exceed one half of one percent of the cost of the project;
(2) for the holding of a public hearing upon application of a housing corporation, an amount sufficient to meet the reasonable cost of advertising the notice thereof and of the transcript of testimony taken thereat; and
(3) for any examination or investigation made upon application of a housing corporation and for any act done by the Department of Commerce, or any of its employees, in performance of their duties under this chapter, an amount reasonably calculated to meet the expenses of the department incurred in connection therewith. In no event shall any part of the expenses of the department incurred under the provisions of this chapter ever be paid out of the State Treasurer. The director may authorize a housing corporation to include such fees as part of the cost of a project or as part of the charges specified in Section 31-1-620 pursuant to rules to be established by the Department of Commerce."
Name change
SECTION 500. Article 5 of Chapter 1 of Title 31 of the 1976 Code is amended to read:
"Article 5
Projects
Section 31-1-410. No housing project proposed by a limited dividend housing company incorporated under this chapter shall be undertaken and no building or other construction shall be placed under contract or started without the approval of the director. No housing project shall be approved by the director unless:
(1) it shall appear practicable to rent the housing accommodations to be created at rentals not exceeding those prescribed by the director;
(2) the project will not be in contravention of any zoning or building ordinance in effect in the locality in which the housing accommodations are to be located;
(3) there shall be submitted to the director a financial plan in such form and with such assurance as the director may prescribe to raise the actual cost of the lands and projected improvements by subscriptions to or the sale of the stock, income debentures and mortgage bonds of such corporation, which plan may provide for the raising of working capital in an amount to be approved by the director not to exceed three percent of the actual cost through the investment in stock and income debentures of the corporation;
(4) there shall be such plans of site development and buildings as show conformity to reasonable standards of health, sanitation, safety and provision for light and air, accompanied by proper specifications and estimates of cost, such plans and specifications in any case not falling below the requirements of the health, sanitation, safety and housing laws of the State and meeting superior requirements if prescribed by local laws and ordinances;
(5) the plans and specifications mentioned in item (4) shall have been submitted to the city council or other governing body of the city in which the housing project is located;
(6) if required by the director, the corporation shall deposit all moneys received by it as proceeds of its mortgage bonds, notes, income debentures or stock with a trustee which shall be a banking corporation authorized to do business in this State and to perform trust functions; and
(7) the acceptance of a designee of the director as a member of the board of directors of such corporation.
Section 31-1-420. The city council to which plans and specifications shall have been submitted pursuant to item (5) of Section 31-1-410 shall return such plans and specifications to the director within fifteen days of their receipt by the council, together with such statements and recommendations as the council may desire to make. It shall be within the discretion of the director to adopt or to reject any or all of such recommendations.
Section 31-1-430. Whenever reference is made in this chapter to the cost of projects or of buildings and improvements in projects, such cost shall include charges for financing and supervision approved by the director and carrying charges during construction required in the project, including interest on borrowed, and, when approved by the director, on invested capital.
Section 31-1-440. A trustee to whom moneys are payable pursuant to requirements of the director made pursuant to item (6) of Section 31-1-410 shall receive such moneys and make payment therefrom for the acquisition of land, the construction of improvements and other items entering into the cost of land improvement upon presentation of draft, check or order signed by a proper officer of the corporation and, if required by the director, countersigned by the director or a person designated by the director for such purpose. Any funds remaining in the custody of such trustee after the completion of the project and payment or arrangement in a manner satisfactory to the director for payment in full thereof shall be paid to the corporation.
Section 31-1-450. When the director shall have approved a project for the construction of housing accommodations presented to it by a limited dividend housing corporation, the corporation may undertake the acquisition of the property needed for the project. Such property may be acquired by gift, bequest or purchase or by the exercise of the power of eminent domain under and pursuant to the law providing for the appropriation or condemnation of private property by corporations.
Section 31-1-460. The power of eminent domain shall not be exercised by a limited dividend housing corporation except with specific authorization of such action by the director and for such purpose the director shall specify that the acquisition of the property and the construction of the particular housing accommodations in connection with which the power is required has been determined by the director, after public hearing, to be in the public interest and necessary for the public use. The hearing shall be held at a time and place appointed by the director and notice of such hearing shall be given by the corporation by one publication in a newspaper, designated by the director, published or circulated in the city or county wherein the property is located at least ten days prior to such hearing. The owner, as shown upon the county auditor's current tax duplicate, of such property as is proposed to be acquired shall also be notified at least ten days prior to such hearing by registered mail addressed to the last known address of such owner.
The director may expressly except from its certificate hereunder, as unnecessary to the plan, any part of the property proposed to be acquired. The approval by the director of the project shall be deemed in any proceeding to acquire land by appropriation as sufficient evidence of the necessity of the appropriation and a duly certified copy of the certificate of the director shall be conclusive evidence as to the matters lawfully certified therein in any appropriation proceeding.
Section 31-1-470. Whenever the council of any municipality in which a project approved by the director is located shall determine by ordinance that any part of the land included in any such project should be maintained as a public park or grounds, such land may be purchased by the municipality for such purpose and thereafter be maintained as a public park or grounds. The council of a municipality by ordinance may also determine that real property of the municipality, specified and described in such ordinance, is not required for use by the municipality and may sell or lease such real property to a limited dividend housing corporation incorporated under this chapter.
Section 31-1-480. Before any limited dividend housing company incorporated under this chapter shall purchase the property of any other limited dividend housing corporation, it shall file an application with the director in the manner herein provided as for a new project and shall obtain the consent of the director to the purchase and agree to be bound by the provisions of this chapter and the director shall not give his consent unless it is shown to his satisfaction that the project is one that can be successfully operated according to the provisions of this chapter.
Section 31-1-490. The director may permit the consolidation of two or more approved projects, the extension or amendment of any approved project or the consolidation of any approved project with a proposed project. In any of these events the consolidated project shall be treated as an original project and an application shall be submitted as in the case of an original project and rents may be averaged throughout the consolidated or extended project. The director may likewise permit or decline to permit any limited dividend corporation to organize and operate more than one project or to take over any project heretofore approved by the director and operate it independently of other projects of the corporation."
Name change
SECTION 501. Article 7 of Chapter 1 of Title 31 of the 1976 Code is amended to read:
"Article 7
Operation, Mortgages, Reorganization,
Foreclosure, and the Like
Section 31-1-610. The director shall fix the maximum rental or charges per room to be charged the tenants of the housing accommodations furnished by any limited dividend housing corporation. Such maximum rental or charges shall be determined upon the basis of the actual final cost of the project containing such rooms so as to secure, together with all other income of the corporation, a sufficient income to meet all necessary payments to be made by the corporation as herein prescribed and such room rental rates or charges shall be subject to revision by the director from time to time. Letting, subletting or assignment of leases of apartments in such housing accommodations at greater rentals than prescribed by the order of the director are prohibited and all such leases will be void for all purposes.
Section 31-1-620. The payments to be made by such corporation shall be:
(1) all fixed charges and all operating and maintenance charges and expenses which shall include taxes, assessments, insurance, amortization charges in amounts approved by the director to amortize the mortgage indebtedness in whole or in part, depreciation charges if, when and to the extent deemed necessary by the director, reserves, sinking fund and corporate expenses essential to the operation and management of the project in amounts approved by the director;
(2) a dividend not exceeding the maximum fixed by this chapter upon the stock of the corporation allotted to the project by the director; and
(3) when feasible in the judgment of the director, a sinking fund in an amount to be fixed by the director for the gradual retirement of the stock and income debentures of the corporation to the extent permitted by this chapter.
Section 31-1-630. If in any calendar or fiscal year the gross receipts of any company formed hereunder should exceed the payments or charges specified in Section 31-1-620, the sums necessary to pay dividends, interest accrued or unpaid on any stock or income debentures and the authorized transfer to surplus, the balance shall, unless the board of directors with the approval of the director shall deem such balance too small for the purpose, be applied to the reduction of rentals.
Section 31-1-640. The amounts of net earnings transferable to surplus in any year after making or providing for the payments specified in Section 31-1-620 shall be subject to the approval of the director. The amount of such surplus shall not exceed fifteen percent of the outstanding capital stock and income debentures of the corporation, but the surplus so limited shall not be deemed to include any increase in assets due to the reduction of a mortgage or amortization or similar payments. On dissolution of any limited dividend housing corporation the stockholders and income debenture certificate holders shall in no event receive more than the par value of their stock and debentures plus accumulated, accrued and unpaid dividends or interest and any remaining surplus shall be paid into the general fund of the State.
Section 31-1-650. Whenever the director shall be of the opinion that any such limited dividend housing corporation is failing or omitting or about to fail or omit to do, anything required of it by law or by order of the director and is doing or about to do anything or permitting anything or about to permit anything to be done, contrary to or in violation of law or of any order of the director or which is improvident or prejudicial to the interests of the public, the lienholders or the stockholders, it may commence an action or proceeding in the court of common pleas of the county in which the corporation is located, in the name of the director, for the purpose of having such violations or threatened violations stopped and prevented either by mandamus or injunction.
Section 31-1-660. The director shall begin such action or proceeding by a petition and complaint to the court of common pleas, alleging the violations complained of and praying for appropriate relief by way of mandamus or injunction. The court shall thereupon specify the time, not exceeding twenty days after service of a copy of the petition and complaint, within which the corporation complained of must answer the petition and complaint.
In case of default in answer or after answer the court shall immediately inquire into the facts and circumstances in such manner as the court shall direct without other or formal pleadings and without respect to any technical requirements. Such other persons or corporations as it shall seem to the court necessary or proper to join as parties in order to make its order or judgment effective may be joined as parties. The final judgment in any such action or proceeding shall either dismiss the action or proceeding or direct that a mandamus order or an injunction or both, be issued as prayed for in the petition and complaint or in such modified or other form as the court may determine will afford appropriate relief.
Section 31-1-670. Any company incorporated under this chapter may, subject to the approval of the director, borrow funds and secure the repayment thereof by bond and mortgage or by an issue of bonds under a trust indenture. Each mortgage or issue of bonds by a company formed hereunder shall relate only to a single specified project and no other and such bonds shall be secured by mortgages upon all of the real property of which such project consists. The bonds so issued and secured and the mortgage or trust indenture relating thereto may create a first or senior lien and a second or junior lien upon the real property embraced in any project. Such bonds and mortgages may contain such other clauses and provisions as shall be approved by the director, including the right to assignment of rents and entry into possession in case of default, but the operation of the housing projects in the event of such entry by mortgagee, trustee or receiver shall be subject to the regulations of the Department of Commerce under this chapter. Provisions for the amortization of the bonded indebtedness of companies incorporated under this chapter shall be subject to the approval of the director.
Section 31-1-680. In any foreclosure action the director shall be made a party defendant and shall take all steps in such action necessary to protect the interest of the public therein. No costs shall be awarded against the director. Foreclosure shall not be decreed unless the court to which application therefor is made shall be satisfied that the interests of the lienholder or holders cannot be adequately secured or safeguarded except by the sale of the property. In any such proceeding the court may make an order increasing the rental to be charged for the housing accommodations in the project involved in such foreclosure or appoint a receiver of the property or grant such other and further relief as may be reasonable and proper. In the event of a foreclosure sale or other judicial sale the property shall, except as provided in Section 31-1-690, be sold to a limited dividend housing corporation organized under this chapter, if such a corporation shall bid and pay a price for the property sufficient to pay court costs and all liens on the property with interest. Otherwise the property shall be sold free of all restrictions imposed by this chapter.
Section 31-1-690. Notwithstanding the provisions of Section 31-1-680, whenever it shall appear that a corporation subject to the supervision either of the Insurance Commissioner of South Carolina, the State Board of Bank Control or the federal government or any agency or department of the federal government, shall have loaned on a mortgage which is a lien upon any such property, such corporation shall have all the remedies available to a mortgagee under the laws of this State, free from any restrictions contained in Section 31-1-680, except that the director shall be made a party defendant and shall take all steps necessary to protect the interests of the public and no costs shall be awarded against it.
Section 31-1-700. If a judgment is obtained against a limited dividend housing corporation in any action not pertaining to the collection of a mortgage indebtedness there shall be no sale of any of the real property of such corporation except upon sixty days' written notice to the director. Upon receipt of such notice the director shall take such steps as in its judgment may be necessary to protect the rights of all parties.
Section 31-1-710. Reorganization of limited dividend housing corporations shall be subject to the supervision and control of the director and no such reorganization shall be had without the authorization of such director.
Upon all such reorganizations the amount of capitalization, including therein all stocks, income debentures and bonds and other evidences of indebtedness shall be such as is authorized by the director which, in making its determination, shall not exceed the fair value of the property involved."
Name change
SECTION 502. Section 31-1-690 of the 1976 Code is amended to read:
"Section 31-1-690. Notwithstanding the provisions of Section 31-1-680, whenever it shall appear that a corporation subject to the supervision either of the Insurance Department of South Carolina, the State Board of Bank Control or the federal government or any agency or department of the federal government, shall have loaned on a mortgage which is a lien upon any such property, such corporation shall have all the remedies available to a mortgagee under the laws of this State, free from any restrictions contained in Section 31-1-680, except that the director shall be made a party defendant and shall take all steps necessary to protect the interests of the public and no costs shall be awarded against it."
Definition revised
SECTION 503. Section 31-3-20(1) of the 1976 Code is amended to read:
"(1) The term `director' shall mean the Director of the Department of Commerce;"
Name change
SECTION 504. Section 31-3-340 of the 1976 Code is amended to read:
"Section 31-3-340. When the council of a city adopts a resolution as aforesaid, it shall promptly notify the mayor of such adoption. Upon receiving such notice the mayor shall appoint five persons as commissioners of the authority created for the municipality. The commissioners who are first appointed shall be designated to serve for terms of one, two, three, four and five years, respectively, from the date of their appointment, but thereafter commissioners shall be appointed as aforesaid for a term of office of five years except that all vacancies shall be filled for the unexpired term. No commissioner of an authority may be an officer or employee of the city for which the authority is created. A commissioner shall hold office until his successor has been appointed and has qualified. A certificate of the appointment or reappointment of any commissioner shall be filed in the office of the clerk of the Circuit Court of the county in which the city is located, in the office of the Secretary of State and in the office of the Director of the Department of Commerce and such certificate shall be conclusive evidence of the due and proper appointment of such commissioner."
Name change
SECTION 505. Section 31-3-370 of the 1976 Code is amended to read:
"Section 31-3-370. For inefficiency, neglect of duty or misconduct in office a commissioner of an authority may be removed by the mayor, but a commissioner shall be removed only after he shall have been given a copy of the charges at least ten days prior to the hearing thereon and had an opportunity to be heard in person or by counsel. In the event of the removal of any commissioner a record of the proceedings, together with the charges and findings thereon, shall be filed in the office of the clerk of the Circuit Court of the county in which the city is located, in the office of the Secretary of State and in the office of the Director of the Department of Commerce."
Name change
SECTION 506. Section 31-3-390 of the 1976 Code is amended to read:
"Section 31-3-390. The territorial jurisdiction of each authority, except as otherwise specially provided, shall be coterminous with the boundaries of the city creating the authority unless this territory is extended by the director. The director may extend the territorial jurisdiction of any housing authority over territory contiguous to that of the housing authority if such extension does not conflict with any other housing authority."
Name change
SECTION 507. Section 31-3-750 of the 1976 Code is amended to read:
"Section 31-3-750. The territorial jurisdiction of a housing authority of a county shall be coterminous with the boundaries of the county in which such authority is situated but shall not include that portion of the county within the territorial jurisdiction of any housing authority of a city. But notwithstanding the provisions of this section the director may extend the territorial jurisdiction of a housing authority of a city over territory contiguous thereto, including territory included within the territorial jurisdiction of the housing authority of a county, and such extension of the territorial jurisdiction of a housing authority of a city and limitation of the territorial jurisdiction of the housing authority of the county affected thereby shall not be deemed to conflict with the housing authority of the county within the meaning of Section 31-3-390 unless a housing project shall have been constructed or acquired or the director shall determine that such a project is about to be constructed or acquired by the housing authority of such county within the territory proposed to be included within the territorial jurisdiction of the housing authority of the city."
Name change
SECTION 508. Section 31-17-340 of the 1976 Code is amended to read:
"Section 31-17-340. A mobile home license issued by the licensing agent shall be valid until title to such mobile home is transferred to a new owner or until the mobile home is relocated. The license shall be evidenced by a decal to be delivered to the owner or his agent on such form as shall be prescribed by the South Carolina Department of Revenue and Taxation and shall be displayed on the mobile home so as to be clearly and readily visible from the outside. The fee for a mobile home license shall be five dollars. The fee shall be collected by the licensing agent issuing the license and shall be paid into the general fund of the county."
Name change
SECTION 509. Section 31-17-360 of the 1976 Code is amended to read:
"Section 31-17-360. If the mobile home is to be relocated, the owner shall, prior to relocation, obtain a moving permit from the licensing agent. Before issuing a moving permit, the licensing agent shall require a certificate from the county treasurer that there are no unpaid taxes due on the mobile home. If the mobile home is to be removed beyond the boundaries of the county, any taxes that have been assessed for that calendar year shall be paid in full, and if taxes have not yet been assessed for the calendar year in which the move is being made, the assessor shall provide the county auditor with an assessment and the auditor shall apply the previous year's millage. The county treasurer shall collect such taxes before issuing the requisite certificate to the licensing agent. Provided, however, that the licensing agent shall promptly notify the present electric supplier that a permit has been issued. Provided, further, that the permit required by this section shall not be required of mobile home dealers when they are moving a mobile home from their sales lot to a customer's lot. Provided, further, that such mobile home dealer shall not be relieved from obtaining any permit required from the Department of Revenue and Taxation for such relocation."
Name change
SECTION 510. Section 31-17-370 of the 1976 Code is amended to read:
"Section 31-17-370. The moving permit shall accompany the mobile home while it is being moved. The moving permit shall be designed and displayed in accordance with regulations to be issued by the South Carolina Department of Revenue and Taxation, which shall adopt such regulations as may be necessary to insure uniform licensing and moving permit procedures. It shall be the responsibility of the mobile home transporter that the required moving permit is properly displayed and accompanies the mobile home while it is being moved."
Definition revised
SECTION 511. Section 31-17-510(g) of the 1976 Code is amended to read:
"(g) `Department' means the Department of Public Safety."
Name change
SECTION 512. Section 33-1-210(a) of the 1976 Code is amended to read:
"(a) The Secretary of State may prescribe and furnish on request forms for:
(1) an application for a certificate of existence,
(2) a foreign corporation's application for a certificate of authority to transact business in this State,
(3) a foreign corporation's application for a certificate of withdrawal, and
(4) in conjunction with the Department of Revenue and Taxation, the annual report. If the Secretary of State so requires, use of these forms is mandatory. The Secretary of State, through regulation, may prescribe a mandatory form in regard to any other forms required or permitted by Chapters 1 through 20 of this Title to be filed in his office. All such mandatory forms must comply with all statutory requirements contained in Chapters 1 through 20 of this Title."
Name change
SECTION 513. Section 33-14-200 of the 1976 Code is amended to read:
"Section 33-14-200. (a) The Secretary of State shall commence a proceeding under Section 33-14-210(a) to dissolve a corporation administratively if:
(1) the corporation does not pay when they are due any franchise taxes, taxes payable under Chapter 7 of Title 12, or penalties imposed by law;
(2) the corporation does not deliver its annual report to the Department of Revenue and Taxation when it is due;
(3) the corporation is without a registered agent or registered office in this State;
(4) the corporation does not notify the Secretary of State that its registered agent or registered office has been changed, that its registered agent has resigned, or that its registered office has been discontinued; or
(5) the corporation's period of duration stated in its articles of incorporation expires.
(b) The Secretary of State shall dissolve a corporation under Section 33-14-210(c) if he is notified by the Department of Revenue and Taxation that the corporation has failed to file a required tax return within sixty days of the notice required by Section 12-7-1675."
Name change
SECTION 514. Section 33-14-220(a) of the 1976 Code is amended to read:
"(a) A corporation dissolved administratively under Section 33-14-210 may apply to the Secretary of State for reinstatement at any time after the effective date of dissolution. The application must:
(1) recite the name of the corporation and the effective date of its administrative dissolution;
(2) state that the grounds for dissolution either did not exist or have been eliminated;
(3) state that the corporation's name satisfies the requirements of Section 33-4-101; and
(4) contain a certificate from the South Carolina Department of Revenue and Taxation reciting that all taxes, penalties, and interest owed by the corporation, whether assessed or not, have been paid."
Name change
SECTION 515. Section 33-14-400 of the 1976 Code is amended to read:
"Section 33-14-400. Assets of a dissolved corporation that should be transferred to a creditor, claimant, or shareholder of the corporation who cannot be found or who is not competent to receive them, must be reduced to cash and deposited with the Department of Revenue and Taxation or other appropriate state official for safekeeping in accordance with the Uniform Disposition of Unclaimed Property Act. When the creditor, claimant, or shareholder furnishes satisfactory proof of entitlement to the amount deposited, the Department of Revenue and Taxation or other appropriate state official shall pay him or his representative that amount."
Name change
SECTION 516. Section 33-15-300(a)(1) and (b) of the 1976 Code are amended to read:
"(a)(1) the foreign corporation does not deliver its annual report to the Department of Revenue and Taxation when due;
(b) the Secretary of State shall proceed under Section 33-15-310(c) to revoke the certificate of authority of a foreign corporation authorized to transact business in this State if he is notified by the Department of Revenue and Taxation that the corporation has failed to file a required tax return within sixty days of the notice required by Section 12-7-1675."
Name change
SECTION 517. Section 33-15-310(c) of the 1976 Code is amended to read:
"(c) If the Secretary of State is notified by the Department of Revenue and Taxation that the foreign corporation has failed to file a required tax return within sixty days of the notice required by Section 12-7-1675, the Secretary of State shall revoke the foreign corporation's certificate of authority by signing a certificate of revocation that recites the grounds for revocation and its effective date. The Secretary of State shall file the original of the certificate and send a copy to the foreign corporation by registered or certified mail addressed to its registered agent at its registered office or to the office of the secretary of the corporation at its principal office."
Name change
SECTION 518. Section 33-15-330(A)(4) of the 1976 Code is amended to read:
"(4) contain a certificate from the South Carolina Department of Revenue and Taxation stating that all taxes, penalties, and interest owed by the corporation, whether assessed or not, have been paid."
Name change
SECTION 519. Section 33-16-101(e)(7) of the 1976 Code is amended to read:
"(7) its most recent annual report delivered to the Department of Revenue and Taxation under Section 12-19-20;"
Name change
SECTION 520. Section 33-31-60 of the 1976 Code is amended to read:
"Section 33-31-60. Before issuing a charter of incorporation to any religious, educational, social, fraternal or other nonprofit organization, the Secretary of State shall first conduct an investigation to determine the merits of the claimed eligibility and status of the organization applying for a charter or an amendment to an existing charter. In the conduct of such investigation the Secretary of State is authorized to obtain information and assistance from any state agency including but not limited to the Department of Social Services and the Department of Revenue and Taxation and shall have access to any relevant records of such state agencies. The issuance of any charter of incorporation or amendment thereto subject to the provisions of this section shall constitute certification by the Secretary of State that the required investigation has been conducted and that the results of the investigation indicate that the organization concerned is eligible for the charter issued.
In addition to the initial investigation conducted prior to the issuance of a charter, the Secretary of State may at any time investigate the status of an organization to which a charter has been issued and upon a finding that it no longer qualifies for the charter may at his discretion revoke such charter. Persons aggrieved by the action of the Secretary of State may appeal his decision to the court of common pleas in the judicial circuit where the organization's principal office is located."
Name change
SECTION 521. Section 33-37-250(10) of the 1976 Code is amended to read:
"(10) to cooperate with and avail itself of the facilities of the Department of Commerce and any similar governmental agencies, including the Small Business Administration, an agency of the United States Government, and to cooperate with and assist and otherwise encourage organizations in the various communities of the State in the promotion, assistance and development of the business prosperity and economic welfare of such communities or of this State or of any part thereof; and"
Name change
SECTION 522. Section 33-37-460(3)(b) of the 1976 Code is amended to read:
"(b) the following limits, to be determined as of the time such member becomes a member on the basis of the audited balance sheet of such member at the close of its fiscal year immediately preceding its application for membership, or in the case of an insurance company its last annual statement to the director of the Department of Insurance or his designee:"
Name change
SECTION 523. Section 33-39-460(3)(b) of the 1976 Code is amended to read:
"(b) the following limits, to be determined as of the time such member becomes a member on the basis of the audited balance sheet of such member at the close of its fiscal year immediately preceding its application for membership, or, in the case of an insurance company, its last annual statement to the director of the Department of Insurance or his designee:"
Name change
SECTION 524. The ninth unnumbered paragraph of Section 34-29-160 of the 1976 Code is amended to read:
"Any accident and health or property insurance sold in conjunction with this chapter must be written on forms and at rates approved by the South Carolina Department of Insurance, provided that a minimum charge of two dollars may be made, pursuant to reasonable regulations adopted by it and having as their purpose the establishment and maintenance of premium rates which are reasonably commensurate with the coverage afforded and which are adequate, not excessive, and not unfairly discriminatory giving due consideration to past or prospective loss experience within or without this State, to dividends, savings, or unabsorbed premium deposits allowed or returned by insurers to borrowers, to reasonable expense allowances necessary to achieve proper risk distribution and spread, and to all other relevant factors within or without this State. These regulations may include reasonable classification systems or programs based upon identifiable and measurable variations in the hazards or expense requirements and may include statistical plans, systems, or programs, which the insurers may be required to adopt, for the purpose of providing that statistical information and data as may be necessary or reasonably appropriate to the determination of premium rates or rate levels. The premium rates and rate levels must be calculated to produce and maintain a ratio of losses incurred, or reasonably expected to be incurred, to premiums earned, or reasonably expected to be earned, of not less than fifty percent, and rates producing a lesser loss ratio are considered excessive."
Name change
SECTION 525. Section 36-9-307(4) of the 1976 Code is amended to read:
"(4) In the case of a purchase of a motor vehicle made pursuant to the provisions of Section 29-15-10, the buyer takes free of a security interest even though perfected, and the Department of Revenue and Taxation shall upon request issue a new title free and clear of prior liens and encumbrances."
Name change
SECTION 526. Section 36-9-319 of the 1976 Code is amended to read:
"Section 36-9-319. Notwithstanding Section 36-9-311, any person who sells or disposes of any personal property subject to a security interest, except for personal property titled by the Department of Revenue and Taxation or the Natural Resources Enforcement Division of the South Carolina Department of Natural Resources, without the written consent of the secured party, and fails to pay the debt secured by the security interests within ten days after sale or disposal or fails in this time to deposit the amount of the debt with the clerk of the court of common pleas for the county in which the secured party resides is guilty of a misdemeanor and, upon conviction, must be fined not more than one thousand dollars or imprisoned for not more than one year, or both. This section does not apply when the sale is made without knowledge or notice of the security interest by the person selling the property. When the value of the property is less than two thousand five hundred dollars, the offense is triable in the magistrate's court and the punishment must be not more than is permitted by law without presentment or indictment by the grand jury. Otherwise, the offense is triable in the court of general sessions."
Reference revised
SECTION 527. Section 37-6-605 of the 1976 Code is amended to read:
"Section 37-6-605. In the performance of his assigned functions the advocate shall have reasonable access to records of all state agencies which are not classified by law as confidential and all state agencies shall cooperate with the advocate in the performance of his duties. In addition, the advocate shall have reasonable access to confidential records and information, provided he enters a proprietary agreement to insure their confidentiality. The South Carolina Department of Insurance and advocate also have access to records, information, and data of the insurance companies as well as all of their sister affiliates, subsidiaries, and parent companies. During the course of a rate making or other proceeding before the South Carolina Department of Insurance or the Public Service Commission, the Consumer Advocate, as a party of record, may request in writing, in addition to all other methods of discovery as provided by law for proceedings before the South Carolina Department of Insurance or the Public Service Commission, the issuance by the director of the Department of Insurance or the executive director of the Public Service Commission of an order compelling a witness or company to either produce or allow inspection of documentary evidence relevant to the matter before the South Carolina Department of Insurance or the Public Service Commission. If the executive director issues or refuses to issue the order, the aggrieved party may appeal to the full commission. The written request, in addition to showing a general relevance and reasonable scope of the evidence sought, must also specify with particularity the books, accounts, papers, records, or other materials of the business desired and the facts expected to be proved thereby. For good cause shown, in lieu of a written request, the request for such an order may be made orally upon the record to the presiding officer at the hearing. Any objections to the issuance of the order must be filed with the commission within three days of being notified of the written request for such order. Any objections so filed must list the specific grounds for objection. The commission shall rule on the objections within ten days or the objection is denied."
Name of title
SECTION 528. Section 38-1-10 of the 1976 Code of Laws is amended to read:
"Section 38-1-10. This title may be cited and is known as `The Insurance Law'."
Advisory committee, commission deleted; etc.
SECTION 529. Section 38-1-20 of the 1976 Code is amended to read:
"Section 38-1-20. In this title unless the context otherwise requires:
(1) `Accident and health insurance' means insurance of human beings against death or personal injury by accident, and every insurance of human beings against sickness, ailment, and any type of physical disability resulting from accident or disease, and prepaid dental service, but not including coverages required by the Workers' Compensation Law of this State.
(2) `Accommodation bondsman' means as defined in Section 38-53-10.
(3) `Adjuster' means an individual who determines the extent of insured losses and assists in settling or attempts to settle claims.
(4) `Admitted assets' means assets of an insurer considered admitted under Section 38-11-100.
(4.5) `Admitted insurer' means an insurer licensed to do business in this State.
(5) `Alien insurer' means an insurer incorporated or organized under the laws of a country other than the United States of America, its states, commonwealths, territories, or insular possessions.
(6) `Annuity' means every contract or agreement to make periodic payments, whether in fixed or variable dollar amounts, or both, at specified intervals.
(7) `Bail bondsman' means as defined in Section 38-53-10.
(8) `By' means on or before.
(9) `Casualty insurance' means every insurance against legal liability of the insured for bodily injury to or death of other persons, including workers' compensation insurance, and for damages to or loss or destruction of the property of others; medical payments insurance when written in conjunction with any insurance covering liability for the deaths or bodily injuries of others; guaranteeing the fidelity of persons holding positions of public or private trust; loss of or damage to property caused by burglary, theft, larceny, robbery, fraud, or any unlawful taking or secretion of property owned by or entrusted to the insured; loss of or damage to property of the insured resulting from the explosion of or damage to any fired or unfired boiler or other pressure vessel, engine, turbine, compressor, pump, wheel, any apparatus generating, transmitting, or using electric power, and any machinery or equipment connected with any of the foregoing; loss resulting from nonpayment of debts owed to merchants or other persons extending credit; and legal insurance.
(10) `Certificate of insurance' means a memorandum copy, complete or abbreviated, of an insurance contract.
(11) `Co-insurance' means a stipulation or requirement that the insured undertakes to be his own insurer to the extent that he fails to maintain insurance of a given percentage of the value of the property against loss or damage.
(12) `Commission' means the part of the premium paid to the agent as compensation for his services.
(13) `Company' includes any corporation, fraternal organization, burial association, other association, partnership, society, order, individual, or aggregation of individuals engaging or proposing or attempting to engage as principals in any kind of insurance or surety business, including the exchanging of reciprocal or interinsurance contracts between individuals, partnerships, and corporations.
(14) `Department' means the Department of Insurance of South Carolina.
(15) `Designee or deputy director' means the person or persons appointed by the director, serving at the will and pleasure of the director as his designee, to supervise and carry out the functions and duties of the department as provided by law. Any duty or function of the director to manage and supervise the Insurance Department may be conferred by the director's authority upon his designee or deputy director.
(16) `Director' means the person who is appointed by the Governor upon the advice and consent of the Senate and who is responsible for the operation and management of the Department of Insurance. The director has the authority to appoint or designate the person or persons who shall serve at the pleasure of the director to carry out the objectives or duties of the department as provided by law. Furthermore, the director may bestow upon his designee or deputy director any duty or function required of him by law to manage and supervise the Insurance Department.
(17) `Domestic insurer' means an insurer incorporated or organized under the laws of this State.
(17.5) `Eligible surplus lines insurer' means a nonadmitted insurer with which a resident broker may place surplus lines insurance.
(18) `Foreign insurer' means an insurer incorporated or organized under the laws of the United States or of any jurisdiction within the United States other than this State.
(19) `Insurance' means a contract whereby one undertakes to indemnify another or pay a specified amount upon determinable contingencies. The term `insurance' includes annuities.
(20) `Insurance agent' means an individual who represents an insurance company and performs the acts listed in Section 38-43-10.
(21) `Insurance broker' means an individual licensed by the department to represent citizens of this State in placing their insurance. An insurance broker may place that insurance either with an eligible surplus lines insurer or with a licensed insurance agent in an insurance carrier licensed in this State.
(22) `Insurance company' includes any corporation, fraternal organization, burial association, other association, partnership, society, order, individual, or aggregation of individuals engaging or proposing or attempting to engage as principals in any kind of insurance or surety business, including the exchanging of reciprocal or interinsurance contracts between individuals, partnerships, and corporations.
(23) `Insurance premium service company' means a person engaged in the business of entering into insurance premium service agreements.
(24) `Insurance rate' means the price of insurance per unit of exposure.
(25) `Insurer' includes any corporation, fraternal organization, burial association, other association, partnership, society, order, individual, or aggregation of individuals engaging or proposing or attempting to engage as principals in any kind of insurance or surety business, including the exchanging of reciprocal or interinsurance contracts between individuals, partnerships, and corporations.
(26) `Legal insurance' means the assumption of a contractual obligation for the sole purpose of providing specified legal services or reimbursement for legal expenses in consideration of a specified payment, for an interval of time, which services are rendered by an individual duly admitted or permitted to practice law in the jurisdictions in which the services were performed.
(27) `Life Insurance' means a contract of insurance upon the lives of human beings. The following contracts are deemed to be contracts of life insurance within the meaning of this definition:
(a) a contract providing acceleration of life benefits, beginning on the contract's original effective date, in advance of the time they otherwise would be payable for long-term care as defined in Section 38-72-40;
(b) a contract providing acceleration of life benefits, beginning on the contract's original effective date, in advance of the time they otherwise would be payable for a life-threatening illness or a terminal illness as specified in the contract.
(28) `Marine insurance' means every insurance against loss or destruction of or damage to aircraft, vessels, or watercraft and their cargoes; insurance covering the risks or perils of navigation, transit, or transportation of all forms of property, including the liability of any carrier for hire for the loss of property of shippers delivered for transporting; marine builder's risks; bridges, tunnels, piers, wharves, docks and slips, dry docks, marine railways, and other aids to navigation and transportation, precious stones, precious metals, and jewelry, whether in the course of transportation or otherwise; coverage of personal property by all risk forms known as the `Personal Property Floater'; and coverage of mobile machinery and equipment.
(28.5) `Nonadmitted insurer' means an insurer not licensed to do an insurance business in this State.
(29) `Person' means a corporation, partnership, association, voluntary organization, individual, or any other entity, organization, or aggregation of individuals.
(30) `Policy' means a contract of insurance.
(31) `Premium' means payment given in consideration of a contract of insurance.
(32) `Premium service agreement' means an agreement by which an insured or prospective insured promises to pay to an insurance premium service company the amount advanced or to be advanced under the agreement to an insurer or to an insurance agent or insurance broker in payment of premiums on an insurance contract together with a service charge as authorized by Chapter 39 of this title.
(33) `Professional bondsman' means as defined in Section 38-53-10.
(34) `Property insurance' means every insurance against direct or indirect loss of or damage to any property resulting from fire, smoke, weather disturbances, climatic conditions, earthquake, volcanic eruption, rising waters, insects, blight, animals, war damage, riot, civil commotion, destruction by order of civil authority to prevent spread of conflagration or for other reason, water damage, vandalism, glass breakage, explosion of any water systems, collision, theft of automobiles and personal effects therein (but no other forms of theft insurance), loss of or damage to domestic or wild animals, and any other perils to property which in the discretion of the director or his designee form proper subjects of property insurance, if not specified in items (1), (7), (9), (27), (28), (37), or (39) of this section.
(35) `Runner' means as defined in Section 38-53-10.
(36) `Surety bondsman' means as defined in Section 38-53-10.
(37) `Surety insurance' means becoming surety on, or guaranteeing the performance of, any lawful contract except an insurance contract; becoming surety on, or guaranteeing the performance of, any bonds and undertaking required or permitted in any judicial proceeding or required or permitted by any government or any agency or instrumentality of any government.
(37.5) `Surplus lines insurance' means insurance in this State of risks located or to be performed in this State, permitted to be placed through a resident broker with a nonadmitted insurer eligible to accept the insurance, other than reinsurance, wet marine and transportation insurance, insurance independently procured, and life and health insurance and annuities. Excess and stop-loss insurance coverage upon group life, accident, and health insurance or upon a self-insured's life, accident, and health benefits program may be approved as surplus lines insurance.
(38) `Surplus to policyholders' is the excess of total admitted assets over the liabilities of an insurer which is the sum of all capital and surplus accounts minus any impairment thereof.
(39) `Title insurance' means insurance of the owners of real property and other persons lawfully interested therein against loss by reason of defective titles and undisclosed liens and encumbrances affecting the property."
"Commissioner", etc., means "Director"
SECTION 530. The 1976 Code is amended by adding:
"Section 38-1-30. Wherever in any other chapter of Title 38 the term `Chief Insurance Commissioner' or `Commissioner' appears or is used, it shall be deemed to mean the Director of the Department of Insurance or his designee."
Name changed
SECTION 531. Section 38-2-10 of the 1976 Code is amended to read:
"Section 38-2-10. Unless otherwise specifically provided by law, the following administrative penalties apply for each violation of the insurance laws of this State:
(1) If the violator is an insurer or a health maintenance organization licensed in this State, the director or his designee shall (a) fine the violator in an amount not to exceed fifteen thousand dollars, or (b) suspend or revoke the violator's authority to do business in this State, or both. If the violation is wilful, the director or his designee shall (a) fine the violator in an amount not to exceed thirty thousand dollars, or (b) suspend or revoke the violator's authority to do business in this State, or both.
(2) If the violator is a person, other than an insurer or a health maintenance organization, licensed by the director or his designee in this State, the director or his designee shall (a) fine the person in an amount not to exceed two thousand five hundred dollars, or (b) suspend or revoke the license of the person, or both. If the violation is wilful, the director or his designee shall (a) fine the person in an amount not to exceed five thousand dollars, or (b) suspend or revoke the license of the person, or both.
The penalties in items (1) and (2) are in addition to any criminal penalties provided by law or any other remedies provided by law. The administrative proceedings in items (1) and (2) do not preclude civil or criminal proceedings from taking place before, during, or after the administrative proceeding."
New department provided for, etc.
SECTION 532. Chapter 3, Title 38 of the 1976 Code is amended to read:
"CHAPTER 3
The Department of
Insurance
Section 38-3-10. There is established a separate and distinct department of this State, known as the Department of Insurance. The department must be managed and operated by a director appointed by the Governor upon the advice and consent of the Senate. The director is subject to removal by the Governor as provided in Section 1-3-240(B). The director shall be selected with special reference to his training, experience, technical knowledge of the insurance industry, and demonstrated administrative ability. The director may appoint or designate the person or persons who shall serve at the pleasure of the director to carry out the objectives or duties of the department as provided by law. Furthermore, the director may bestow upon his designee or deputy director any duty or function required of him by law in managing or supervising the Department of Insurance.
Section 38-3-40. The director or his designee shall receive annual compensation as may be provided by the General Assembly and official expenses as provided by law for executing the duties and functions of the department.
Section 38-3-60. The director or his designee must follow the general policies and broad objectives enacted by the General Assembly regarding the operation of the insurance industry in this State.
Section 38-3-70. The department shall annually submit to the General Assembly, through the Governor, a report of its official acts and doings, together with a report of all insurers under the department doing business in this State, with condensed statements of their reports made to it, together with a statement of all licenses, taxes, and fees received by it through insurers and paid by it to the State Treasurer. The department shall report to the General Assembly any change which in its opinion should be made in the laws relating to insurance and other subjects pertaining to the department. By February first, it shall make to the Governor the recommendations called for in this section, to be transmitted to the General Assembly with its last annual report, including a statement of its receipts and disbursements.
Section 38-3-80. The department shall have a seal with a suitable inscription, an impression of which must be filed with the Secretary of State.
Section 38-3-100. The director or his designee is not subject to the State Employee Grievance Committee or any internal grievance procedure established at the Insurance Department. The director or his designee shall devote all of his working time to the duties of his office. Before taking the oath of office he shall sever all connections, either direct or indirect, except as a policyholder, with any insurance company or agency and shall maintain the severance during his tenure of office. If he becomes a candidate for public office or becomes a member of a political committee during tenure, his office as director or his designee must be immediately vacated.
Section 38-3-110. The director or his designee have the following duties:
(1) supervise and regulate the rates and service of every insurer in this State and fix just and reasonable standards, classifications, regulations, practices, and measurements of service to be observed and followed by every insurer doing business in this State. Nothing contained in this title authorizes or requires a review by the department or the director of any order of the director's designee or the deputy director under the Administrative Procedures Act. This item does not grant any additional authority to the director or his designee with regard to insurance rates other than the rate-making authority specifically granted to the director or his designee, or the Department of Insurance for certain kinds of insurance in other provisions of this title;
(2) see that all laws of this State governing insurers or relating to the business of insurance are faithfully executed and make regulations to carry out this title and all other insurance laws of this State, the enforcement or administration of which is not otherwise specifically provided for;
(3) furnish to domestic insurers required by law to report to the department the necessary blank forms for the reports required, which forms may be changed as necessary to secure full information as to the standing, condition, and any other information desired by the director or his designee;
(4) report to the Attorney General or other appropriate law enforcement officials criminal violations of the laws relative to the business of insurance or the provisions of this title which he considers necessary to report;
(5) institute civil actions, either through his office or through the Attorney General, relative to the business of insurance or the provisions of this title which he considers necessary to institute.
Section 38-3-120. The director shall take the oath of office as prescribed for all state officers. Before entering upon or continuing the discharge of the duties of his office, he shall give bond to the State for the benefit of any person aggrieved by his unlawful or wrongful actions. This bond must be in the sum of fifty thousand dollars, with sufficient surety, to be approved by the State Treasurer, for the faithful performance of all the duties required of him under the law during the term of his office. The premium of the bond must be paid by the State.
Section 38-3-130. The director shall appoint or employ actuaries, examiners, clerks, and other employees necessary for the proper execution of the work of the department.
Section 38-3-140. The failure to do any act required by this title is considered a violation committed in part at the office of the director in Columbia.
Section 38-3-150. All examinations or investigations provided by this title, unless otherwise provided by any other insurance laws of this State, may be conducted by the director or by one or more of his duly authorized assistants or agents. All hearings must be held by the director or by one of his duly authorized assistants or agents when authorized to do so in writing by the director. However, in any hearing concerning the adjustment of insurance rates the director or his designee may conduct the hearing.
Section 38-3-160. The director or his duly appointed assistants or agents shall administer all oaths required in the discharge of his official duties.
Section 38-3-170. All hearings, unless otherwise specifically provided, must be held at the time and place designated in a written notice given by the director or his designee to the person cited to appear at least thirty days before the designated date. The notice shall state the subject of the inquiry and specific charges, if any. It is sufficient to give notice either by delivering it to the person or by depositing it in the United States mail, postage prepaid, addressed to the last known address of the person and registered with return receipt requested.
Section 38-3-180. The director or any assistants or agents appointed to conduct examinations may summon and compel the attendance of witnesses to testify in relation to any matter which is, by the provisions of this title or by any other insurance laws of this State, a subject of inquiry and investigation. The director or his designee has the power of a circuit judge to punish for contempt any witness failing to answer any summons or failing or refusing to testify when so required. The director or any assistants or agents appointed to conduct examinations may also administer oaths and affirmations to persons appearing as witnesses before them, and false testimony in any matter or proceeding is considered perjury and must be punished in accordance with the laws of this State.
Section 38-3-190. Any person summoned by the Insurance Department to testify as a witness at any hearing must be paid for his actual mileage at the same rate as provided by law for state departments or divisions.
Section 38-3-200. No order of the director or his designee is effective unless made in writing and signed by the director or by his authority.
Section 38-3-210. Any order or decision made, issued, or executed by the director or his designee is subject to judicial review in accordance with the appellate procedures of the South Carolina Administrative Law Judge Division, as provided by law. An appeal from an order or decision under this section must be heard in the Administrative Law Judge Division, as provided by law. The administrative law judge or judges may not, under any terms, order a stay of enforcement of any order of the director or his designee to make good an impairment of capital or surplus or a deficiency in the amount of admitted assets.
Section 38-3-220. Every certificate or other paper executed by the director or his designee in pursuance of any authority conferred upon him by law and sealed with the seal of the department and all copies of papers certified by the director or his designee and authenticated by the director's or his designee's seal may in all cases be used as evidence in any suit or proceeding in any court of this State with the same force and effect as the originals.
Section 38-3-230. In any case or controversy where it is necessary to determine whether any insurance or other company, or agent thereof, is or has been licensed by the director or his designee to do business in this State, the certificate of the director or his designee under the seal of the department is admissible in evidence as proof of this authority.
Section 38-3-240. (A) Beginning July 1, 1992, the department shall begin converting certain licenses required by statute or regulation to a biennial license fee collection period. These license fees must be collected as follows:
(1) All insurers transacting business in this State including reciprocals, fraternal benefit associations, mutual insurers doing a property business only in no more than three counties, mutual insurers doing a property business only in a single county, and approved reinsurers shall pay a license fee for two years to the department by March 1, 1994, and every two years after that time by March 1st every even-numbered year.
(2) An agency transacting the business of insurance in this State shall pay a license fee for two years to the department within thirty days after January 1, 1994, and every two years after that time within thirty days after January 1st every even-numbered year.
(3) A broker transacting the business of insurance in this State shall pay a license fee for two years to the department within thirty days after May 1, 1994, and every two years after that time within thirty days after May 1st every even-numbered year.
(4) An adjuster transacting business in this State shall pay a license fee for two years to the department within thirty days after August 1, 1993, and every two years after that time within thirty days after August 1st every odd-numbered year.
(5) A motor vehicle damage appraiser transacting business in this State shall pay a license fee for two years to the department within thirty days after October 1, 1993, and every two years after that time within thirty days after October 1st every odd-numbered year.
(6) An agent transacting the business of insurance in this State shall pay a license fee for two years to the department within thirty days after September 1, 1992, and every two years after that time within thirty days after July 1st every even-numbered year.
(B) The fees described in this section must be earned fully when paid and are not refundable, proratable, or transferable. They must be collected in the amount and manner prescribed by statute or regulation before July 1, 1992, until the dates prescribed in subsection (A) when collections must be made pursuant to that subsection."
Name changed, etc.
SECTION 533. Chapter 5, Title 38 of the 1976 Code is amended to read:
"CHAPTER 5
Authority and
Requirements to Transact Business
Section 38-5-10. Every insurer doing business in this State must be licensed and supervised by the director or his designee, with the following exceptions:
(a) Without excluding other activities which may not constitute doing business in this State, a foreign or alien insurer is not considered to be doing business in this State, for purposes of this chapter, or Chapter 7, 13, 25, or 27, solely by reason of carrying on in this State any one or more of the following activities:
(1) Maintaining bank accounts.
(2) Creating or acquiring evidences of debt, mortgages, or liens on real or personal property, and enforcing rights in connection therewith in any action or proceeding, whether judicial, administrative, or otherwise.
(3) Owning and controlling a subsidiary corporation incorporated in or transacting business within this State.
(b) [Blank]
Section 38-5-20. A charitable, religious, benevolent, or educational corporation, not operating for profit and in active operation for at least five years, may receive transfers of property conditioned upon its agreement to pay an annuity or lump-sum benefit to the transferor or his nominee without being subject to the insurance laws of this State. No corporation operating for profit, including nursing homes or any other type of business, is permitted to issue charitable or gift annuities without the director's or his designee's approval.
Section 38-5-30. The director or his designee may license insurers, subject to other requirements of existing insurance laws, to transact the following kinds of insurance in this State:
(a) Life insurance and annuities.
(b) Accident and health insurance.
(c) Property insurance.
(d) Casualty insurance.
(e) Surety insurance.
(f) Marine insurance.
(g) Title insurance.
(h) Multiple lines insurance, meaning any two or more of the kinds of insurance listed in items (b), (c), (d), (e), (f), and (g) of this section.
Each license issued is for an indefinite term unless revoked or suspended.
Section 38-5-40. No life insurer may be licensed to write any other kinds of insurance listed in Section 38-5-30 except accident and health insurance. However, any life insurer licensed to transact other kinds of insurance immediately prior to March 18, 1964, shall continue to be so licensed if otherwise qualified.
Section 38-5-50. No insurer licensed to write any of the kinds of insurance listed in items (c), (d), (e), (f), (g), and (h) of Section 38-5-30 may be licensed to write life insurance. However, any life insurer licensed to transact other kinds of insurance immediately prior to March 18, 1964, shall continue to be so licensed if otherwise qualified.
Section 38-5-60. For purposes of calculating deductions for reserves, insurers not licensed in this State may be approved as reinsurers by the director or his designee for an indefinite term only if:
(1) Upon initial application a fee of four hundred dollars is enclosed, and, every two years after that time, a fee of four hundred dollars is paid by March first.
(2) There is filed with the department a power of attorney approved as to form by the director or his designee and authorizing the director to accept service of process in behalf of the reinsurer.
(3) There is filed with the department the reinsurer's annual statement and the reinsurer's most recent report of examination, and after that time each annual statement and report of examination is filed.
(4) The reinsurer meets the capital and surplus requirements of South Carolina law with respect to the lines to be reinsured.
Section 38-5-70. Every insurer shall, before being licensed, appoint in writing the director and his successors in office to be its true and lawful attorney upon whom all legal process in any action or proceeding against it must be served and in this writing shall agree that any lawful process against it which is served upon this attorney is of the same legal force and validity as if served upon the insurer and that the authority continues in force so long as any liability remains outstanding in the State. Copies of the appointment, certified by the director, are sufficient evidence of the appointment and must be admitted in evidence with the same force and effect as the original might be admitted.
Section 38-5-80. Before granting the original certificate of authority or license to a domestic insurer to do business in this State, the director or his designee must be satisfied by proper evidence that:
(a) The insurer is duly qualified to transact business under the laws of this State.
(b) The insurer has filed with him an affidavit of its president or other chief officer that it has not violated this title in the past year and that it accepts the terms and obligations of this title as part of the consideration for license.
(c) The insurer pays all taxes and performs all duties required by law.
(d) The reserves of the insurer are adequate for the protection of policyholders of this State.
(e) The insurer's directors and officers are competent, trustworthy, and have a good business reputation and that none of the directors and officers have been convicted of a crime in any jurisdiction involving fraud, dishonesty, or like moral turpitude or convicted of violating an insurance statute of any jurisdiction.
(f) The insurer has employed one or more persons residing in this State with adequate experience and training to manage properly its business and affairs.
(g) The insurer has not entered into any management contract, agency agreement, or other agreement which may materially affect its financial condition so as to render its proceedings hazardous to the public or to its policyholders.
(h) The insurer has made adequate reinsurance arrangements if required.
(i) The insurer's proposed method of operation, when considered in light of its financial condition and the absence of any prior operating experience, will not likely render its proceedings hazardous to the public or to its policyholders.
(j) The reserve basis to be used by the insurer will be adequate for the protection of policyholders in this State.
(k) The insurer's principal place of business and primary executive, administrative, and home offices and all original books and records of the insurer are located and maintained in this State. The provisions of this subsection apply to domestic health maintenance organizations.
Item (k) of this section does not apply to any domestic insurer whose primary executive, administrative, and home offices were located outside this State on July 1, 1987.
If subsequently the director or his designee is of the opinion that a condition exists which would have prohibited him from issuing the original certificate of authority or license to the insurer, then that condition also constitutes a ground for license revocation under Section 38-5-120.
Section 38-5-90. Before granting the original certificate of authority or license to a foreign or alien insurer to do business in this State, the director or his designee must be satisfied by proper evidence that:
(a) The insurer is duly qualified to transact business under the laws of this State.
(b) The insurer has filed with him an affidavit of its president or other chief officer that it has not violated this title in the past year and that it accepts the terms and obligations of this title as part of the consideration for license.
(c) The insurer pays all taxes and performs all duties required by law.
(d) The reserves of the insurer are adequate for the protection of policyholders of this State.
(e) The insurer's directors and officers are competent, trustworthy, and have a good business reputation.
(f) The insurer has employed one or more persons residing in this State with adequate experience and training to manage properly its business and affairs relating to its policies in South Carolina.
(g) The insurer has not entered into any management contract, agency agreement, or other agreement which may materially affect its financial condition so as to render its proceedings hazardous to the public or to its policyholders.
(h) The insurer has made adequate reinsurance arrangements if required.
(i) The insurer's proposed method of operation, when considered in light of its financial condition and the absence of any prior operating experience, will not likely render its proceedings hazardous to the public or to its policyholders.
(j) The insurer is safe and solvent.
(k) The insurer's dealings are fair and equitable.
(l) The insurer conducts its business in a manner not contrary to the public interest.
If subsequently the director or his designee is of the opinion that a condition exists which would have prohibited him from issuing a certificate of authority or license to the insurer, then that condition also constitutes a ground for license revocation under Section 38-5-120.
Section 38-5-100. No foreign or alien insurer may be licensed to do business in this State when its name is identical with that of any active insurer previously licensed to do business in this State which has engaged in business therein for one year or more. No foreign or alien insurer may be licensed to do business in this State when its name is so nearly similar to that of any active insurer previously licensed to do business in this State which has engaged in business therein for one year or more so as to lead to confusion and uncertainty.
Section 38-5-110. It is unlawful for the Secretary of State to issue any charter or grant any amendments of charter to any insurer or permit any foreign or alien insurer to do business within this State without the written approval of the director or his designee.
Section 38-5-120. (A) The director or his designee shall revoke or suspend certificates of authority granted to an insurer and its officers and agents if he is of the opinion upon examination or other evidence that one or more of the following exist:
(1) The insurer is in an unsound condition.
(2) The insurer has not complied with the law or with the provisions of its charter.
(3) The insurer's condition renders its proceedings hazardous to the public or its policyholders. For the purpose of the application of this item, one or more of the following standards may be considered by the director or his designee in determining whether the continued operation of an insurer transacting insurance business in this State is hazardous to the public or its policyholders:
(a) adverse findings reported in financial condition and market conduct examination reports;
(b) the National Association of Insurance Commissioners Insurance Regulatory Information System and its related reports;
(c) the ratios of commission expense, general insurance expense, policy benefits, and reserve increases as to annual premium and net investment income which could lead to an impairment of capital and surplus;
(d) whether the insurer's asset portfolio when viewed in light of current economic conditions is not of sufficient value, liquidity, or diversity to assure the company's ability to meet its outstanding obligations as they mature;
(e) whether the ability of an assuming reinsurer to perform and the insurer's reinsurance program provides sufficient protection for the company's remaining surplus after taking into account the insurer's cash flow and the classes of business written as well as the financial condition of the assuming reinsurer;
(f) whether the insurer's operating loss in the last twelve months or a shorter time including, but not limited to, net capital gain or loss, change in nonadmitted assets, and cash dividends paid to shareholders, is greater than fifty percent of the insurer's remaining surplus as regards policyholders in excess of the minimum required;
(g) whether an affiliate, a subsidiary, or a reinsurer is insolvent, threatened with insolvency, or delinquent in payment of its monetary or other obligations;
(h) contingent liabilities, pledges, or guaranties which individually or collectively involve a total amount which in the opinion of the director or his designee may affect the solvency of the insurer;
(i) whether a `controlling person' of an insurer is delinquent in the transmitting to or payment of net premiums to the insurer;
(j) the age and collectibility of receivables;
(k) whether the management of an insurer, including officers, directors, or other persons who directly or indirectly control the operation of the insurer, fails to possess and demonstrate the competence, fitness, and reputation necessary to serve the insurer in that position;
(l) whether management of an insurer has failed to respond to inquiries relative to the condition of the insurer or has furnished false and misleading information concerning an inquiry;
(m) whether management of an insurer has filed a false or misleading sworn financial statement, released a false or misleading financial statement to lending institutions or to the general public, made a false or misleading entry, or omitted an entry of a material amount in the books of the insurer;
(n) whether the insurer has grown so rapidly and to an extent that it lacks adequate financial and administrative capacity to meet its obligations in a timely manner;
(o) whether the company has experienced or will experience in the foreseeable future cash flow or liquidity problems.
(4) The true value of the insurer's assets, if it is a life insurer, is less than its liabilities, exclusive of its capital.
(5) The officers or agents of an insurer refuse to submit to examination or to perform a legal obligation relative to an examination.
(6) The insurer has not complied with a lawful order of the director or his designee.
(B) Notice of revocation and suspension must be published in a newspaper of general circulation in this State. No new business may be done by the insurer or its agents in this State while the default or disability continues nor until its authority to transact business is restored by the director or his designee.
(C) Notwithstanding the provisions of subsection (A), if the director or his designee determines that an insurer is in an unsound condition or in a hazardous condition provided in subsection (A)(1) and (3), he may issue an order requiring the insurer to:
(1) reduce the total amount of present and potential liability for policy benefits by reinsurance;
(2) reduce, suspend, or limit the volume of business being accepted or renewed;
(3) reduce general insurance and commission expenses by specified methods;
(4) increase the insurer's capital and surplus;
(5) suspend or limit the declaration and payment of dividends by an insurer to its stockholders or to its policyholders;
(6) file reports in a form acceptable to the director or his designee concerning the market value of an insurer's assets;
(7) limit or withdraw from certain investments or discontinue certain investment practices to the extent the director or his designee considers necessary;
(8) document the adequacy of premium rates in relation to the risks insured;
(9) file, in addition to regular annual statements, interim financial reports on the form adopted by the National Association of Insurance Commissioners or on a format approved by the director or his designee;
(10) disregard credit or an amount receivable resulting from transactions with a reinsurer which is insolvent, impaired, or otherwise subject to a delinquency proceeding;
(11) make appropriate adjustments to asset values attributable to investments in or transactions with parents, subsidiaries, or affiliates;
(12) refuse to recognize the stated value of accounts receivable if the ability to collect receivables is highly speculative in view of the age of the account or the financial condition of the debtor;
(13) increase the insurer's liability in an amount equal to a contingent liability, pledge, or guarantee not otherwise included if there is a substantial risk that the insurer will be called upon to meet the obligation undertaken within the next twelve months; or
(14) take other action he considers appropriate.
Section 38-5-130. The director or his designee may, in lieu of license revocation or suspension as provided by Section 38-5-120, impose a monetary penalty as provided in Section 38-2-10 for each violation or failure of compliance or refusal to submit or perform as prescribed therein. Series of acts by an insurer which merely implement a basic violation and are not separate and distinct violations of an independent nature are considered to be part of the basic violation and only one penalty may be imposed thereon.
Section 38-5-140. Unless the grounds for revocation relate only to the financial condition or soundness of the insurer or to a deficiency in its assets, the director or his designee shall notify the insurer not less than thirty days before revoking its authority to do business in this State and he must specify in the notice the particulars of the alleged violation of the law or its charter or grounds for revocation and a proper opportunity must be offered the insurer to be heard.
Section 38-5-150. While the certificate of authority is suspended, no domestic insurer or any of its officers may pay out any funds belonging to the insurer without first receiving the director's or his designee's approval.
Section 38-5-160. If he considers it necessary, the director or his designee may apply to a judge of the circuit court to issue an injunction restraining a domestic insurer whose certificate of authority has been suspended, in whole or in part, from proceeding further with its business. The judge may immediately issue the injunction and, upon notice and after a full hearing of the matter, may (a) dissolve or modify the injunction or make it permanent, (b) make all orders and judgments necessary in the matter, and (c) appoint agents or a receiver to take possession of the property and effects of the insurer and to settle its affairs, subject to any rules and orders the court prescribes.
Section 38-5-170. The certificate of authority, agents' appointments and licenses, rates, and other items which the director or his designee may allow which are in existence at the time any insurer licensed to transact the business of insurance in this State transfers its corporate domicile to this or any other state by merger, consolidation, or any other lawful method shall continue in effect upon such transfer if the insurer remains duly qualified to transact the business of insurance in this State. All outstanding policies of any transferring insurer shall remain in effect and need not be endorsed as to the new name of the company or its new location unless so ordered by the director or his designee. Every transferring insurer shall file new policy forms with the department on or before the effective date of the transfer but may use existing policy forms with appropriate endorsements if allowed by, and under conditions as approved by, the director or his designee. Every transferring insurer shall notify the director or his designee of the details of the proposed transfer and shall file promptly any resulting amendments to corporate documents filed or required to be filed with the department."
Name changed, etc.
SECTION 534. Chapter 7, Title 38 of the 1976 Code is amended to read:
"CHAPTER 7
Fees and Taxes
Section 38-7-10. (A) Every insurer, except mutual benevolent aid associations and fraternal benefit associations, before transacting business in this State shall pay a license fee of eight hundred dollars to the department and after that initial payment pay to the department a biennial license fee of eight hundred dollars by March first every other year.
(B) In addition to the license fees required in subsection (A), the director or his designee shall collect from each insurer licensed by him to do business in this State a license fee of four hundred dollars for each kind of insurance for which the insurer is licensed as listed in Section 38-5-30(a) through (g). Each mutual insurer doing a property business only in no more than three counties shall pay a biennial fixed license fee of one hundred dollars and each mutual insurer doing a property business only in a single county shall pay a biennial fixed license fee of forty dollars. The license fees required in this subsection must be paid to the director or his designee before the insurer transacts business in this State and after that initial payment must be paid biennially to the director or his designee by March first every two years.
Section 38-7-20. In addition to all license fees and taxes otherwise provided by law, there is levied upon each insurance company licensed by the director or his designee an insurance premium tax based upon total premiums, other than workers' compensation insurance premiums, and annuity considerations, collected by the company in the State during each calendar year ending on the thirty-first day of December. For life insurance, the insurance premium tax levied herein is equal to three-fourths of one percent of the total premiums collected. For all other types of insurance, the insurance premium tax levied herein is equal to one and one-fourth percent of the total premiums collected. In computing total premiums, return premiums on risks and dividends paid or credited to policyholders are excluded.
The insurance premium taxes collected by the director or his designee pursuant to this section must be deposited by him in the general fund of the State.
Section 38-7-30. Any expenses, including expenses of counsel, detectives, and officers, incurred by the discrimination in rates, must be defrayed by the fire insurance companies doing business in this State, and a tax of one percent on the gross premium receipts less premiums returned on canceled policy contracts and less dividends and returns of unabsorbed premium deposits of all fire insurance companies is levied for this purpose, to be collected by the director or his designee as other taxes on fire insurance companies are collected. The director or his designee shall keep a separate account of all monies received and disbursed under the provisions of this section and shall include the account in his annual report.
Section 38-7-40. Each fire insurer shall pay to the director or his designee an amount equal to one percent of all premiums written on fire insurance required to be reported under Section 38-7-70 during the preceding year ending December thirty-first or for such portion of that period as the insurer has done business in this State.
Section 38-7-50. Every insurer insuring employers in this State against liability for personal injuries to their employees or death caused by the injuries, under the provisions of Title 42, shall pay a tax upon the premiums received whether in cash or notes in this State, or on account of business done in this State, for such insurance in this State at the rate of four and one-half percent of the amount of the premiums. For fiscal year 1990-91, the tax is at the rate of premiums. For fiscal year 1991-92 and thereafter, the tax is at the rate of two and one-half percent of the discrimination in rates, must be defrayed by the fire insurance companies doing business in this State, and a tax of one percent on the gross premium receipts less premiums returned on canceled policy contracts and less dividends and returns of unabsorbed premium deposits of all fire insurance companies is levied for this purpose, to be collected by the director or his designee as other taxes on fire insurance companies are collected. The director or his designee shall keep a separate account of all monies received and disbursed under the provisions of this section and shall include the account in his annual report.
Section 38-7-40. Each fire insurer shall pay to the director or his designee an amount equal to one percent of all premiums written on fire insurance required to be reported under Section 38-7-70 during the preceding year ending December thirty-first or for such portion of that period as the insurer has done business in this State.
Section 38-7-50. Every insurer insuring employers in this State against liability for personal injuries to their employees or death caused by the injuries, under the provisions of Title 42, shall pay a tax upon the premiums received whether in cash or notes in this State, or on account of business done in this State, for such insurance in this State at the rate of four and one-half percent of the amount of the premiums. For fiscal year 1990-91, the tax is at the rate of three and one-half percent of the amount of the premiums. For fiscal year 1991-92 and thereafter, the tax is at the rate of two and one-half percent of the amount of the premiums. This tax is in lieu of all other taxes on these premiums and must be assessed and collected as provided in this chapter. However, the insurers must be credited with all canceled or returned premiums actually refunded during the year on workers' compensation insurance including any unused premiums refunded or credited to policyholders as dividends. If an insurer fails or refuses to make the return required by Section 38-7-60, the director or his designee shall assess the tax against the insurer at the rate provided for in this chapter on the amount of premiums he considers just and the proceedings thereon must be the same as if the return had been made.
Section 38-7-60. (1) Not later than March first of each year, every insurer licensed by the director or his designee shall file with him a return of premiums collected by the insurer in the State during the immediately preceding calendar year ending on December thirty-first. The return must be made on forms prescribed by the director or his designee and must be made under oath by the insurer's employee or representative responsible for the preparation of fee and tax returns, as well as the insurer's chief executive officer.
(2) The license fees imposed in Section 38-7-20 must be fully reported on the return filed in accordance with subsection (1) of this section.
(3) The premium and other taxes imposed on insurers pursuant to Sections 38-7-20, 38-7-30, 38-7-40, 38-7-50, and 38-7-90 must be paid to the director or his designee in quarterly installments on or before March first, June first, September first, and December first of each calendar year. The quarterly payments must be calculated and paid as follows:
(a) The quarterly installments paid on or before June first, September first, and December first must each be computed based upon one-fourth of the total premiums collected by the insurer during the immediately preceding calendar year ending on December thirty-first. The quarterly installments for June first, September first, and December first must be reported on forms prescribed by the director or his designee.
(b) The quarterly installment paid on or before March first must equal the difference between the total tax liability of the insurer for the immediately preceding calendar year ending on December thirty-first and the sum of the quarterly installments paid by the insurer on June first, September first, and December first of that immediately preceding calendar year. The quarterly installment for March first must be reported on the returns filed in accordance with subsection (1) of this section. An insurer whose quarterly tax installments are less than one thousand dollars per payment may elect not to pay its tax liability on a quarterly basis and, instead, may elect to report and pay its entire tax liability on the return filed in accordance with subsection (1) of this section.
(4) The director or his designee may suspend or revoke the license of any insurer which fails to make returns and pay fees and taxes as required in this section. The Attorney General shall bring suit in the name of the State to collect any unpaid portion of the fees or taxes required by law.
Section 38-7-70. Each fire insurer carrying on business in this State shall annually return to the director or his designee by March first a just and true account, verified by oath, of all premiums received during the preceding year ending December thirty-first from all fire insurance on all property located or that may be located in this State and from all fire insurance business done in this State. In the report the insurer shall allocate the premiums on this business to the county in which the property is located, regardless of where the insurance is written or premiums collected.
Section 38-7-80. Every fire insurer shall keep accurate books of account of all business done by it on fire insurance required to be reported under the provisions of Section 38-7-70. If it is apparent the return is fraudulent or dishonest, the director or his designee shall investigate the return and collect the amount he finds due. Every fire insurer which neglects to keep books of account as required by this section, neglects or fails to report or pay any of the money due on premiums as required by Section 38-7-40 or 38-7-70, or is found upon examination to have made a false return of business done by it shall for each offense be subject to the penalty provisions of Section 38-2-10, to be applied to the purposes prescribed in Section 23-9-410.
Section 38-7-90. (A) When the laws of any other state or the regulations or actions of any public official of another state subject, or would subject, insurance companies chartered by this State, or their agents or representatives, to fees, taxes, obligations, conditions, restrictions, or penalties for the privilege of doing business in that state which are greater than those required by this State of similar insurers organized or domiciled in the other state by or in this State for the privilege of doing business herein, then all similar insurers organized or domiciled in that state are subjected to the greater requirements which are or would be imposed by or in that state upon similar insurers of this State.
(B) This section must be applied, regardless of whether an insurer chartered by this State is doing business in the other state. The application of this section is based upon a comparison of the aggregate requirements imposed by this State with the aggregate requirements imposed by the other state. Taxes, fees, or other obligations imposed by municipalities are considered in the application of this section.
(C) This section is effective for all insurance premiums collected after December 31, 1989, and to all insurance premium tax returns filed beginning with the quarterly return due September 1, 1990, and all quarterly and annual returns filed after that time.
Section 38-7-110. The State may bring suit in court for back fees, taxes, penalties, and interest imposed by this title at any time within ten years from the date on which they should have been paid. On collection of the fees and taxes, they must be distributed as provided by the statutes under which they were levied.
Section 38-7-120. (A) As soon as practicable after each tax return or other document is filed, the director or his designee, when fees and taxes are involved, shall examine the document and compute the fees and taxes due. If the fees and taxes found due are greater than the amount paid, the excess must be paid to the director or his designee within fifteen days after notice of the amount due is mailed by the director or his designee. If the amount due is not paid within the fifteen-day period, a penalty of five percent of the amount due may be assessed.
(B) If the additional fees and taxes found to be due upon the examination of the document are not paid within fifteen days of notice by the director or his designee, interest must be added to the amount of the deficiency at the rate of five percent for each month or fraction of a month from the date the fees or taxes originally were due until the date the deficiency is paid. The total maximum interest to be charged may not exceed twenty-five percent.
(C) Up to one year after the date upon which an original tax return or other document is required to be filed, an insurer or other person may file an amended return to correct errors of overpayment or other errors made by the insurer or person in the original return or document. No amended return or document may be filed by an insurer or a person or accepted by the director or his designee after one year. No tax adjustment, deduction, or credit may be made or taken by the insurer or person, or allowed by the director or his designee, on a return or document filed after one year for errors claimed to have been made by the insurer or other person in the original return or document.
(D) If, upon examination of an original or amended return or document, it appears to the director or his designee that the amount of fees or taxes due is less than the amount paid, the excess must be ordered refunded by the or his designee. No refunds may be made with respect to monies distributable to a governmental unit after the distribution has been made.
(E) This section does not apply to the continuation of biennial license fees for agencies, brokers, appraisers, or adjusters.
Section 38-7-130. (a) When the State charges or levies any fees, taxes, penalties, or interest against any insurer or other person, or any fees, taxes, penalties, or interest are assessed by the director or his designee and the State or director or his designee claims the payment of the fees, taxes, penalties, or interest so charged or assessed, or institutes a proceeding to collect them, the insurer or other person against whom the fees, taxes, penalties, or interest is charged or assessed or against whom the proceeding is instituted, if he conceives the fees or taxes to be unjust or illegal, may pay the fees or taxes and any penalties, or interest thereon, under protest in writing, with the type of funds the State Treasurer or director or his designee is authorized to receive. Upon this payment, the director or his designee shall pay the fees, taxes, penalties, or interest collected by him into the state treasury giving notice at the time to the State Treasurer that the payment was made under protest.
(b) Any insurer or other person paying any fees, taxes, penalties, or interest under protest must within thirty days after making the payment bring an action against the director for the recovery thereof, in the Court of Common Pleas for Richland County. If it is determined in that action that the fees, taxes, penalties, or interest was unjustly or illegally collected, the court must so certify of record, and the State Treasurer shall refund the fees, taxes, penalties, or interest to the payor.
Section 38-7-140. If any person or any officer or employee of any insurer or other person, with intent to evade any requirement of this title or any lawful requirement of the director or his designee, fails to pay any fees, taxes, penalties, or interest, fails to make, sign, or verify any return, or fails to supply any information required by this title, or with like intent makes, renders, signs, or verifies any false or fraudulent information, that person is guilty of a misdemeanor and, upon conviction, must be fined an amount not to exceed five thousand dollars or imprisoned for a term not to exceed five years, or both.
Section 38-7-150. The director or his designee may, upon making a record of his reasons therefor, waive or reduce any of the penalties or interest imposed under the provisions of this title pertaining to fees and taxes.
Section 38-7-160. This title may not be construed as preventing any municipality from levying and collecting license fees or taxes in accordance with its ordinances. However, no municipality may charge a license fee to fire insurers or their agents licensed by the director or his designee in any other manner than on a percentage of the premiums collected in the municipality or realized from risks located within the limits of the municipality, or both, the license fee not to exceed two percent of the premiums collected in the municipality and realized from risks located in the municipality, except in cities of fifty thousand inhabitants or more, where not exceeding five percent may be charged. Preference must be given hereunder to the municipality wherein the insured property is located, and, if a license is levied against the insuring company on such basis, that company may not be subject to a similar license from a municipality wherein it may collect the premium for such transaction.
Section 38-7-170. All fees, taxes, penalties, and interest collected by the director or his designee under this title, unless specifically provided otherwise, must be deposited by the director or his designee in the general fund of the State.
Section 38-7-180. An insurance company exempt from federal income tax pursuant to Section 501(c)(3) or (4) of the Internal Revenue Code of 1986, and which insures only churches and their property, is exempt from taxes levied on insurance companies in Sections 38-7-20, 38-7-30, and 38-7-40. To provide exemption from federal income tax under Section 501(c)(3) or (4) of the Internal Revenue Code of 1986, the company shall provide to the director or his designee a certificate issued by the Internal Revenue Service demonstrating the company's tax-exempt status. The company shall further provide evidence satisfactory to the director or his designee that it only insures churches and their property."
Name changed, etc.
SECTION 535. Chapter 9, Title 38 of the 1976 Code is amended to read:
"CHAPTER 9
Capital, Surplus, Reserves, and Other Financial
Matters
Section 38-9-10. (A)(1) Before licensing a stock insurer, the director or his designee shall require the insurer to be possessed of capital which must be maintained at all times and surplus, twenty-five percent of which must be maintained at all times, in amounts not less than:
If licensed to write Capital Surplus
(a) life: $ 600,000 $ 600,000
(b) accident and health: 600,000 600,000
(c) life, accident,
and health: 1,200,000 1,200,000
(d) property: 1,200,000 1,200,000
(e) casualty: 1,200,000 1,200,000
(f) surety: 1,200,000 1,200,000
(g) marine: 1,200,000 1,200,000
(h) title: 600,000 600,000
(i) multiple lines: 1,500,000 1,500,000
(2) The director or his designee may require additional initial capital and surplus based on the type or nature of business transacted, and the initial capital and surplus of the insurer must consist of cash or marketable securities which are eligible investments under Section 38-11-40.
(B) If the surplus of a stock insurer is less than twenty-five percent of the surplus initially required, as set forth in subsection (A), the insurer is considered delinquent, and the director or his designee may begin delinquency proceedings as provided by Chapter 27 of this title.
(C) If the capital of a stock insurer is impaired, the insurer is delinquent, and the director or his designee shall begin delinquency proceedings.
Section 38-9-20. (A)(1) Before licensing a mutual insurer, the director or his designee shall require the insurer to be possessed of surplus of not less than:
Surplus which must
be possessed
If licensed to write: at time of licensing
(b) accident and health: 1,200,000
(c) life, accident, and health: 2,400,000
(d) property: 2,400,000
(e) casualty: 2,400,000
(f) surety: 2,400,000
(g) marine: 2,400,000
(h) title: 1,200,000
(i) multiple lines: 3,000,000
(2) The director or his designee may require additional initial surplus based on the type or nature of business transacted, and the initial surplus of the insurer must consist of cash or marketable securities which are eligible investments under Section 38-11-40.
(B) If the surplus of a licensed mutual insurer is less than the sum of the capital and minimum surplus required to be maintained by a stock insurer licensed to write the same kind or kinds of business, the mutual insurer is considered delinquent, and the director or his designee may begin delinquency proceedings as provided by Chapter 27 of this title.
(C) If the surplus of a licensed mutual insurer is less than the minimum capital required to be possessed by a stock insurer licensed to write the same kind or kinds of business, the mutual insurer is delinquent, and the director or his designee shall begin delinquency proceedings.
Section 38-9-30. Sections 38-9-10 and 38-9-20 do not apply to an insurer that is licensed to do business in this State on July 1, 1991, if the insurer continues to remain licensed in this State and continues to maintain at least the following minimum capital and surplus amounts if a stock insurer or minimum surplus if a mutual insurer:
(1) An insurer, if possessed of capital and surplus amounts on December 31, 1990, that were in compliance with the law at that time, but which are less than the minimums required to be maintained by Section 38-9-10, shall maintain not less than the amount of capital stated in its 1990 annual statement and maintain surplus of not less than twenty-five percent of that amount of capital. If the surplus of the insurer is reduced to less than twenty-five percent of this minimum amount of required capital, the insurer is considered delinquent, and the director or his designee may begin delinquency proceedings as provided by Chapter 27 of this title. If the minimum capital required to be maintained by this section by the insurer becomes impaired, the insurer is delinquent, and the director or his designee shall begin delinquency proceedings. If the capital is increased to an amount greater than the amount possessed on December 31, 1990, the amount of surplus that must be maintained after the increase is twenty-five percent of that greater amount of capital, and if this amount is not maintained, the director or his designee may begin delinquency proceedings as provided by Chapter 27 of this title. This increased amount of capital must not be reduced to an amount less than the amount required by Section 38-9-10, and if it becomes reduced or impaired, the insurer is delinquent, and the director or his designee shall begin delinquency proceedings.
(2) A mutual insurer, if possessed of surplus on December 31, 1990, that was in compliance with the law at that time but is less than the minimum required to be maintained by Section 38-9-20, shall maintain not less than the amount of surplus stated in its 1990 annual statement. If the surplus of the insurer is reduced to less than eighty percent of the amount shown in its 1990 annual statement, the insurer is considered delinquent, and the director or his designee may begin delinquency proceedings as provided by Chapter 27 of this title. If the surplus of the insurer is increased to an amount greater than the amount possessed on December 31, 1990, eighty percent of that greater amount of surplus, or the minimum amount required to be maintained by Section 38-9-20, whichever amount is the lesser, must be maintained after the increase, and if it is not maintained, the insurer is considered delinquent, and the director or his designee may begin delinquency proceedings as provided by Chapter 27 of this title.
(3) A domestic stock insurer possessed of the minimum capital and surplus required by item (1) or a domestic mutual insurer possessed of the minimum surplus required by item (2), which is the subject of a change of control defined in Chapter 21 of this title, the Insurance Holding Company Regulatory Act, immediately shall increase its minimum capital and surplus if a stock insurer, or its minimum surplus if a mutual insurer, to comply with the minimums in Section 38-9-10 or 38-9-20, whichever is applicable.
Section 38-9-40. The director or his designee shall notify each licensed insurer that does not comply with Section 38-9-10 or 38-9-20 of the amounts of capital and surplus if a stock insurer, or the amount of surplus if a mutual insurer, the insurer shall maintain in order to continue to remain licensed in this State. A schedule of the amounts required to be maintained by each insurer so notified must be published in all succeeding annual reports of the Insurance department that are submitted to the General Assembly through the Governor, as required by Section 38-3-70. This schedule must be revised annually as to those insurers whose minimum capital and surplus requirements are increased periodically as required by Section 38-9-30.
Section 38-9-50. An insurer that fails to meet the minimum capital and surplus requirements of this chapter, but which continues to remain licensed by virtue of Section 38-9-30, shall confine its business to the kinds of insurance for which it was licensed on July 1, 1988. If the insurer desires to write additional kinds of insurance, it shall comply with the capital and surplus requirements of Section 38-9-10 or 38-9-20 as applicable.
Section 38-9-60. Sections 38-9-30 to 38-9-50 may not be construed as a limitation of any authority conferred elsewhere by this title upon the director or his designee to deny or revoke or suspend a license of an insurer.
Section 38-9-70. The director or his designee in his official capacity shall take and hold, in trust, deposits made by domestic insurers for the purpose of complying with the laws of any other state to enable the insurer to do business in that state. The insurer making the deposit is entitled to the income and may with the consent of the director or his designee and when not forbidden by the law under which the deposit is made, change, in whole or in part, the securities which compose the deposit for other solvent securities of equal par value approved by the director or his designee.
Section 38-9-80. (A) The director or his designee shall require every insurer, other than fraternal benefit societies, transacting, or desiring to transact, business in this State to deposit with him certificates of deposit of building and loan associations chartered by South Carolina or federal savings and loan associations located within the State in which deposits are guaranteed by the Federal Savings and Loan Insurance Corporation, not to exceed the amount covered by insurance, or of national banks located within the State or banks chartered by South Carolina in which deposits are guaranteed by the Federal Deposit Insurance Corporation, not to exceed the amount covered by insurance; or other securities which:
(1) qualify as legal investments under the laws of this State for public sinking funds;
(2) are not in default as to principal or interest;
(3) have a current market value of not less than ten thousand nor more than two hundred thousand dollars, as determined by the director or his designee pursuant to the standards promulgated by the department.
(B) The director or his designee shall prescribe the amount, within the limits of this section, of the securities required, and he subsequently may increase or decrease the amount required.
(C) Notwithstanding the limitations in this section as to the amount of deposits required, the director or his designee may require an insurer to deposit an amount of securities in excess of the limits based on his consideration of the following:
(1) adverse findings reported in financial condition and market conduct examination reports;
(2) the National Association of Insurance Commissioners Insurance Regulatory Information System and its related reports;
(3) the ratios of commission expense, general insurance expense, policy benefits, and reserve increases as to annual premium and net investment income which could lead to a significant adjustment to an insurer's capital and surplus;
(4) whether the insurer's asset portfolio when viewed in light of current economic conditions is not of sufficient value, liquidity, or diversity to assure the insurer's ability to meet its outstanding obligations as they mature;
(5) whether an insurer had a significant operating loss in the last twelve months or a shorter time;
(6) whether an affiliate, subsidiary, or a reinsurer is insolvent, threatened with insolvency, or delinquent in payment of its monetary or other obligations;
(7) contingent liabilities, pledges, or guaranties which individually or collectively involve a total amount which in the opinion of the director or his designee may affect the solvency of the insurer;
(8) whether the management of an insurer, including officers, directors, or other persons who directly or indirectly controls the operation of the insurer, fails to possess and demonstrate the competence, fitness, and reputation necessary to serve the insurer in that position;
(9) whether management has failed to respond to inquiries relative to the condition of the insurer or has furnished false and misleading information concerning an inquiry;
(10) whether the insurer has grown so rapidly and to an extent that it lacks adequate financial and administrative capacity to meet its obligations in a timely manner;
(11) whether the insurer has experienced or will experience in the foreseeable future cash flow or liquidity problems.
Section 38-9-90. The bonds or other securities required by Section 38-9-80 must be held as security for the payment of claims against the insurer arising out of its failure to meet obligations incurred in this State. Policyholders ratably and without preference and general creditors ratably, without preference, and subordinate to the claims of policyholders shall have a lien on the bonds or other securities for the amount of their claim.
Section 38-9-100. If a qualified insurer deposits with an officer or official body of another state for the protection of all its policyholders, or all its policyholders and creditors, acceptable securities not in default as to principal or interest and of a current market value of not less than one million dollars, and delivers to the director or his designee a certificate to that effect, authenticated by the appropriate state official holding the deposit, the insurer may be relieved of making the deposit required by Section 38-9-80. For the purpose of this section a `qualified insurer' is a licensed stock insurer possessed of at least ten million dollars of capital and surplus or a licensed mutual, fraternal, or reciprocal insurer possessed of at least ten million dollars of surplus, according to its most recent annual statement filed with the director or his designee and, in the discretion of the director or his designee, may include eligible surplus lines insurers which meet these capital and surplus requirements. For the purpose of this section, `acceptable securities' means bonds of the United States or of a state of the United States, or of a municipality or county, upon which is pledged the full faith and credit of the appropriate political division, or bonds or notes secured by mortgages or deeds of trust on otherwise unencumbered real estate of a market value of not less than double the amount loaned, or other securities approved by the director or his designee.
Section 38-9-110. A domestic company, in order to comply with the laws of any other state or territory of the United States, may make a voluntary deposit with the director or his designee in excess of the amount required by Section 38-9-80. This excess deposit is subject to all other applicable provisions of the laws of this State relating to the deposits of insurers, except that the excess deposit must be for the protection of all the company's policy obligations, ratably and without preference, notwithstanding the provisions of Section 38-9-90. However, a domestic company making this voluntary deposit is relieved of making the deposit required by Section 38-9-80 if the company meets the definition of a qualified insurer as defined in Section 38-9-100 and if the voluntary deposit meets the requirements of Section 38-9-100.
Section 38-9-120. A depositing insurer may exchange for the deposited securities, or any of them, other securities eligible for deposit under Sections 38-9-80 to 38-9-140 if, in the opinion of the director or his designee, the aggregate value of the deposit will not be reduced below the amount required by law.
Section 38-9-130. The director or his designee at the time of receiving any bonds or other securities deposited under Sections 38-9-80 to 38-9-140 shall give to the company authority to collect the interest thereon for its own use. This authority continues in force until the company fails to pay any of its liabilities for which the deposit is security. In case of that failure the party charged with payment of the interest must be notified that thereafter the interest is payable to the director or his designee to be applied, if necessary, to the payment of those liabilities.
Section 38-9-140. When the principal of any securities deposited under Sections 38-9-80 to 38-9-140 is paid to the director or his designee, he shall pay the money so received to the company. However, if the securities were required to be deposited under Section 38-9-80 the payment may not be made until the company deposits an equal amount of other securities of the character required for similar deposits. If the company fails to deliver to the director or his designee within thirty days after receiving notice of this requirement the securities necessary to maintain its required deposit, he may invest the money in other securities of the required character and hold the same as he held those which were paid.
Section 38-9-150. Upon request of a domestic insurer the director or his designee may return to the insurer the whole or any portion of the securities of the insurer held by him on deposit when he is satisfied that the securities asked to be returned are not subject to any liability and are not required to be held any longer by any provision of law or purpose of the original deposit.
These deposits made by a foreign insurer must be returned by the director or his designee upon the filing with the director or his designee by the trustee or other authorized representative of the insurer a written request and sworn affidavit stating (a) that the insurer has no contracts of insurance in force and no unsatisfied claims outstanding within this State or (b) that reinsurance of all outstanding contracts and acceptance of all unsatisfied claims within this State have been provided by an insurer or insurers authorized to transact the same kinds of business in this State, filing with the affidavit a certified copy of the reinsurance agreement. Release must be made upon the written order of the director or his designee when he is satisfied that the above requirements have been met. The director or his designee is considered the agent of the foreign insurer for acceptance of service of any legal process in any action or proceeding against the insurer for any claim that might arise before or after the return of its deposits. Any person making a false affidavit as required in this section must, upon conviction, be imprisoned for a period not exceeding five years.
Section 38-9-160. An insurer which has made a deposit in this State, pursuant to this title, its trustees or resident managers in the United States, the director or his designee, or any creditor of the insurer may, at any time, bring an action in the Circuit Court for the County of Richland against the State and other parties properly joined to enforce, administer, or terminate the trust created by the deposit. The process in the action must be served on the officer of the State having the deposit, who must appear and answer in behalf of the State and perform any orders and judgments the court may make in the action.
Section 38-9-170. (A) An insurer authorized to transact business in this State, except as to risks or policies for which reserves are required under subsections (B) and (C) and Section 38-9-180 except for real estate title insurance policies, and subject to specific provisions of this title, shall maintain reserves equal to the unearned portions of the gross premiums charged on unexpired or unterminated risks and policies. Credit for reinsurance is allowed a ceding insurer as a deduction from reserves required by this section only as provided in Section 38-9-200 or 38-9-210.
(B) (1) With reference to insurance against loss or damage to property except as provided in item (5) and with reference to all general casualty insurance and surety insurance every insurer shall maintain an unearned premium reserve on all policies in force.
(2) The director or his designee may require that these reserves are equal to the unearned portions of the gross premiums in force as computed on each respective risk from the policy's date of issue. If the director or his designee does not so require, the portions of the gross premium in force to be held as premium reserve must be computed according to the following table:
Term for Which Reserved for
Policy was Written Unearned Premium
1 year or less ½
2 years 1st year 3/4
2nd year ¼
3 years 1st year 5/6
2nd year ½
3rd year 1/6
4 years 1st year 7/8
2nd year 5/8
3rd year 3/8
4th year 1/8
5 years 1st year 9/10
2nd year 7/10
3rd year ½
4th year 3/10
5th year 1/10
Over 5 years pro rata.
(3) All of these reserves may be computed, at the option of the insurer, on a yearly or more frequent pro rata basis.
(4) After adopting a method for computing the reserve, an insurer may not change methods without the director's or his designee's approval.
(5) With reference to marine insurance, premiums on trip risks not terminated are considered unearned, and the director or his designee may require the insurer to carry a reserve equal to one hundred percent on trip risks written during the month ended as of the date of statement. For all accident and health policies the insurer shall maintain an active life reserve which places a sound value on its liabilities under these policies and which is not less than the reserve according to standards set forth in regulations issued by the director and not less, in the aggregate, than the pro rata gross unearned premium reserves for these policies.
Section 38-9-180. (A) The director or his designee annually shall value, or cause to be valued, the reserve liabilities, referred to as reserves, for all outstanding life insurance policies and annuity and pure endowment contracts of every life insurer doing business in this State. However, for an alien insurer the valuation is limited to the United States business and may certify the amount of the reserves, specifying the mortality table or tables, rate or rates of interest, and methods, net level premium method or other, used in the calculation of the reserves. In calculating the reserves he may use group methods and approximate averages for fractions of a year or otherwise. In lieu of the valuation of the reserves required in this section of a foreign or an alien insurer, he may accept any valuation made, or caused to be made, by the insurance supervisory official of a state or another jurisdiction when the valuation complies with the minimum standard provided in this section and if the official of the state or jurisdiction accepts as sufficient and valid for all legal purposes the certificate of valuation of the director or his designee when the certificate states the valuation to have been made in a specified manner according to which the aggregate reserves would be at least as large as if they had been computed in the manner prescribed by the law of that state or jurisdiction.
(B) (1) Every life insurance company doing business in this State annually shall submit to the director or his designee the opinion of a qualified actuary as to whether the reserves and related actuarial items held in support of the policies and contracts specified by the director by regulation are computed appropriately, are based on assumptions which satisfy contractual provisions, are consistent with prior reported amounts, and comply with applicable laws of this State. The director by regulation shall define the specifics of this opinion and add other items necessary to its scope.
(2)(a) Every life insurance company, except as exempted by or pursuant to regulation, also annually must include in the opinion required in item (1) an opinion of the same qualified actuary as to whether the reserves and related actuarial items held in support of the policies and contracts specified by the director by regulation, when considered in light of the assets held by the company with respect to the reserves and related actuarial items, including, but not limited to, the investment earnings on the assets and the considerations anticipated to be received and retained under the policies and contracts, make adequate provision for the company's obligations under the policies and contracts, including, but not limited to, the benefits under and expenses associated with the policies and contracts.
(b) The director may provide by regulation for a transition period for establishing higher reserves which the qualified actuary considers necessary in order to render the opinion required by this subsection.
(3) Each opinion required by item (2) is governed by the following provisions:
(a) A memorandum, in form and substance acceptable to the department as specified by regulation, must be prepared to support each actuarial opinion.
(b) If the insurance company fails to provide a supporting memorandum at the request of the director or his designee within a period specified by regulation or the director or his designee determines that the supporting memorandum provided by the insurance company fails to meet the standards prescribed by the regulations or is otherwise unacceptable to the director or his designee, the director or designee may engage a qualified actuary at the expense of the company to review the opinion and the basis for the opinion and prepare supporting memorandum required by the director or designee.
(4) Every opinion is governed by the following provisions:
(a) The opinion must be submitted with the annual statement reflecting the valuation of reserve liabilities for each year ending after December 30, 1993.
(b) The opinion must apply to all business in force including individual and group health insurance plans, in form and substance acceptable to the director or designee as specified by regulation.
(c) The opinion must be based on standards adopted by the Actuarial Standards Board and on additional standards the director by regulation prescribes.
(d) For an opinion required to be submitted by a foreign or alien company, the director or designee may accept the opinion filed by that company with the insurance supervisory official of another state if the director or designee determines that the opinion reasonably meets the requirements applicable to a company domiciled in this State.
(e) For the purposes of this subsection, `qualified actuary' means a member in good standing of the American Academy of Actuaries who meets the requirements set forth in regulations.
(f) Except in cases of fraud or wilful misconduct, the qualified actuary must not be liable for damages to a person, other than the insurance company and the director or designee, for an act, an error, an omission, a decision, or conduct with respect to the actuary's opinion.
(g) Disciplinary action by the director or designee against the company or the qualified actuary must be defined in regulations by the director.
(h) A memorandum in support of the opinion and related material provided by the company to the director or designee must be kept confidential by the director or designee and must not be made public or subject to subpoena, other than for the purpose of defending an action seeking damages from a person by reason of action required by this subsection or by regulations promulgated under it. However, the memorandum or other material may be released by the director or designee with the written consent of the company or to the American Academy of Actuaries upon request stating that the memorandum or other material is required for the purpose of professional disciplinary proceedings and setting forth procedures satisfactory to the director or designee for preserving the confidentiality of the memorandum or other material. Once a portion of the confidential memorandum is cited by the company in its marketing, is cited before a governmental agency other than a state insurance department, or is released by the company to the news media all portions of the confidential memorandum are no longer confidential.
(C) (1) Except as otherwise provided in item (3) of this subsection and subsection (D), the minimum standard for the valuation of policies and contracts issued before March 24, 1960, is that provided by the laws in effect immediately before that date except the minimum standards for the valuation of annuities and pure endowments purchased under group annuity and pure endowment contracts issued before the effective date is that provided for by the laws in effect immediately before that date but replacing the interest rates as specified in the laws by an interest rate of five percent a year.
(2) Except as otherwise provided in item (3) of this subsection and subsection (D), the minimum standard for the valuation of policies and contracts issued after March 23, 1960, is the director's or designee's reserve valuation methods defined in subsections (E), (F), and (I), five percent interest for group annuity and pure endowment contracts and three and one-half percent interest for all other policies and contracts, or for policies and contracts other than annuity and pure endowment contracts issued after May 25, 1975, four percent interest for policies issued before January 1, 1979, five and one-half percent interest for single premium life insurance policies, and four and one-half percent interest for all other policies issued after December 31, 1978, and the following tables:
(a) for all ordinary policies of life insurance issued on the standard basis, excluding disability and accidental death benefits in the policies, the commissioner's 1941 Standard Ordinary Mortality Table for the policies issued before the operative date stated in Section 38-63-650, the commissioner's 1958 Standard Ordinary Mortality Table for the policies issued on or after the operative date of Section 38-63-590 of the Standard Nonforfeiture Law for Life Insurance, and before the operative date of Section 38-63-590 of the Standard Nonforfeiture Law for Life Insurance, if for any category of policies issued on female risks all modified net premiums and present values referred to in this section may be calculated according to an age not more than three years younger than the actual age of the insured; for policies issued before January 1, 1979, and not more than six years younger than the actual age of the insured for policies issued after December 31, 1978, and before the operative date of Section 38-63-600; and for policies issued on or after the operative date of Section 38-63-600 of the Standard Nonforfeiture Law for Life Insurance the commissioner's 1980 Standard Ordinary Mortality Table, at the election of the company for one or more specified plans of life insurance, the commissioner's 1980 Standard Ordinary Mortality Table with Ten-Year Select Mortality Factors, or any ordinary mortality table, adopted after 1980 by the National Association of Insurance Commissioners, that is approved by regulation promulgated by the director for use in determining the minimum standard of valuation for the policies;
(b) for all industrial life insurance policies issued on the standard basis, excluding disability and accidental death benefits in the policies, the 1941 Standard Industrial Mortality Table for policies issued before the operative date stated in Section 38-63-650; for all policies issued on or after operative date, the 1941 Standard Industrial Mortality Table or the commissioner's 1961 Standard Industrial Mortality Table or any industrial mortality table, adopted after 1980 by the National Association of Insurance Commissioners, that is approved by regulation promulgated by the director for use in determining the minimum standard of valuation for policies, according to which of these tables is used to calculate adjusted premiums and present values as specified in Section 38-63-580;
(c) for individual annuity and pure endowment contracts, excluding disability and accidental death benefits in the policies, the 1937 Standard Annuity Mortality Table or, at the option of the company, the Annuity Mortality Table for 1949, Ultimate, or a modification of either of these tables approved by the director or designee;
(d) for group annuity and pure endowment contracts, excluding disability and accidental death benefits in the policies, the Group Annuity Mortality Table for 1951, a modification of the table approved by the director or designee or, at the option of the insurer, any of the tables or modifications of tables specified for individual annuity and pure endowment contracts;
(e) for total and permanent disability benefits in or supplementary to ordinary policies or contracts, for policies or contracts issued after December 31, 1965, the tables of Period 2 disablement rates and the 1930 to 1950 termination rates of the 1952 Disability Study of the Society of Actuaries, with due regard to the type of benefit or tables of disablement rates and termination rates, adopted after 1980 by the National Association of Insurance Commissioners, approved by regulation promulgated by the director, for use in determining the minimum standard of valuation for the policies; for policies or contracts issued after December 31, 1960, and before January 1, 1966, either the tables or, at the option of the company, the Class (3) Disability Table (1926) and for policies issued before January 1, 1961, the Class (3) Disability Table (1926) or other table approved by the director or designee. The table, for active lives, must be combined with a mortality table permitted for calculating the reserves for life insurance policies;
(f) for accidental death benefits in or supplementary to policies, for policies issued after December 31, 1965, the 1959 Accidental Death Benefits Table, or any accidental death benefits table, adopted after 1980 by the National Association of Insurance Commissioners, that is approved by regulation promulgated by the director for use in determining the minimum standard of valuation for the policies; for policies issued after December 31, 1960, and before January 1, 1966, either the table or, at the option of the company, the Inter-Company Double Indemnity Mortality Table; and for policies issued before January 1, 1961, the Inter-Company Double Indemnity Mortality Table, or other table approved by the director or designee. The table must be combined with a mortality table permitted for calculating the reserves for life insurance policies;
(g) for extra benefits provided in life or endowment contracts or policies under which there is payable a series of coupons or guaranteed dividends or a series of constant or variable pure endowments maturing either during the term of the contract and the continuation of the life of the insured or maturing as a series after the death of the insured, the table or basis of reserves approved by the director or designee;
(h) for group life insurance, life insurance issued on the substandard basis and other special benefits, the tables approved by the director or designee;
(3) Except as provided in subsection (D), the minimum standard for the valuation of all individual annuity and pure endowment contracts issued on or after the operative date of this item, as defined in this section, and for all annuities and pure endowments purchased on or after the operative date under group annuity and pure endowment contracts, is the director's or designee's reserve valuation methods defined in subsections (E) and (F) and the following tables and interest rates:
(a) for individual annuity and pure endowment contracts issued before January 1, 1979, excluding disability and accidental death benefits in the contracts, the 1971 Individual Annuity Mortality Table, or a modification of this table approved by the director or designee, and six percent interest for single premium immediate annuity contracts, and four percent interest for all other individual annuity and pure endowment contracts;
(b) for individual single premium immediate annuity contracts issued after December 31, 1978, excluding disability and accidental death benefits in the contracts, the 1971 Individual Annuity Mortality Table or any individual annuity mortality table, adopted after 1980 by the National Association of Insurance Commissioners, that is approved by regulation promulgated by the director for use in determining the minimum standard of valuation for the contracts, or a modification of these tables approved by the director or designee, and seven and one-half percent interest;
(c) for individual annuity and pure endowment contracts issued after December 31, 1978, other than single premium immediate annuity contracts, excluding disability and accidental death benefits in the contracts, the 1971 Individual Annuity Mortality Table or any individual annuity mortality table, adopted after 1980 by the National Association of Insurance Commissioners, that is approved by regulation promulgated by the director for use in determining the minimum standard of valuation for the contracts, or a modification of these tables approved by the director or designee, and five and one-half percent interest for single premium deferred annuity and pure endowment contracts and four and one-half percent interest for all other individual annuity and pure endowment contracts;
(d) for all annuities and pure endowments purchased before January 1, 1979, under group annuity and pure endowment contracts, excluding disability and accidental death benefits purchased under the contracts, the 1971 Group Annuity Mortality Table, or a modification of this table approved by the director or designee, and six percent interest;
(e) for all annuities and pure endowments purchased after December 31, 1978, under group annuity and pure endowment contracts, excluding disability and accidental death benefits purchased under the contracts, the 1971 Group Annuity Mortality Table or a group annuity mortality table, adopted after 1980 by the National Association of Insurance Commissioners, that is approved by regulation promulgated by the director for use in determining the minimum standard of valuation for the annuities and pure endowments, or a modification of these tables approved by the director or designee, and seven and one-half percent interest. After May 26, 1975, an insurer may file with the director or designee a written notice of its election to comply with this item after a specified date before January 1, 1979, which is the operative date of this item for the insurer. However, an insurer may elect a different effective date for individual annuity and pure endowment contracts from that elected for group annuity and pure endowment contracts. If an insurer makes no election, the effective date of this item for the insurer is January 1, 1979.
(D) (1) The calendar year statutory valuation interest rates as defined in this subsection must be used in determining the minimum standard for the valuation of:
(a) all life insurance policies issued in a particular calendar year, on or after the operative date of Section 38-63-600 of the Standard Nonforfeiture Law for Life Insurance;
(b) all individual annuity and pure endowment contracts issued in a particular calendar year after December 31, 1982;
(c) all annuities and pure endowments purchased in a particular calendar year after December 31, 1982, under group annuity and pure endowment contracts;
(d) the net increase, if any, in a particular calendar year after January 1, 1983, in amounts held under guaranteed interest contracts.
(2) The calendar year statutory valuation interest rates, I, must be determined as follows and the results rounded to the nearer one-quarter of one percent:
(a) for life insurance,
I= .03 + W (R(1) +21 .03) + 2W(R(2) +21 .09);
(b) for single premium immediate annuities and for annuity benefits involving life contingencies arising from other annuities with cash settlement options and from guaranteed interest contracts with cash settlement options,
I=. 03 + W (R - .03),
where R(1) is the lesser of R and .09, R(2) is the greater of R and .09, R is the reference interest rate defined in this subsection, and W is the weighting factor defined in this subsection;
(c) for other annuities with cash settlement options and guaranteed interest contracts with cash settlement options, valued on an issue year basis, except as stated in subitem (b) of this item, the formula for life insurance stated in subitem (a) of this item applies to annuities and guaranteed interest contracts with guarantee durations in excess of ten years and the formula for single premium immediate annuities stated in subitem (b) applies to annuities and guaranteed interest contracts with guarantee duration of ten years or less;
(d) for other annuities with no cash settlement options and for guaranteed interest contracts with no cash settlement options, the formula for single premium immediate annuities stated in subitem (b) applies;
(e) for other annuities with cash settlement options and guaranteed interest contracts with cash settlement options, valued on a change in fund basis, the formula for single premium immediate annuities stated in subitem (b) applies. However, if the calendar year statutory valuation interest rate for life insurance policies issued in a calendar year determined without reference to this sentence differs from the corresponding actual rate for similar policies issued in the immediately preceding calendar year by less than one-half of one percent, the calendar year statutory valuation interest rate for the life insurance policies must be equal to the corresponding actual rate for the immediately preceding calendar year. For purposes of applying the immediately preceding sentence, the calendar year statutory valuation interest rate for life insurance policies issued in a calendar year must be determined for 1980, using the reference interest rate defined for 1979, and must be determined for each subsequent calendar year regardless of when Section 38-63-600 of the Standard Nonforfeiture Law for Life Insurance becomes operative.
(3) The weighting factors referred to in the formulas stated in this subsection are given in the following tables:
(a) weighting Factors for Life Insurance:
Guarantee Duration
(Years) Weighting Factors
10 or less .50
More than 10, but
not more than 20 .45
More than 20 .35
For life insurance, the guarantee duration is the maximum number of years the life insurance may remain in force on a basis guaranteed in the policy or under options to convert to plans of life insurance with premium rates or nonforfeiture values or both which are guaranteed in the original policy;
(b) weighting factor for single premium immediate annuities and for annuity benefits involving life contingencies arising from other annuities with cash settlement options and guaranteed interest contracts with cash settlement options:
Weighting
Factors
.80
(c) weighting factors for other annuities and for guaranteed interest contracts, except as stated in subitem (b) of this item are as specified sub-subitem (i), (ii), and (iii) according to the rules and definitions in sub-subitems (iv), (v), and (vi):
(i) for annuities and guaranteed interest contracts valued on an issue year basis:
Guarantee Weighting Factor
Duration for Plan Type
(Years) A B C
5 or less: .80 .60 .50
More than five, but
not more than 10: .75 .60 .50
More than 10, but
not more than 20: .65 .50 .45
More than 20: .45 .35 .35;
(ii) For annuities and guaranteed interest contracts valued on a change in fund basis, the factors shown in sub-subitem (i) of this subitem increased by:
Plan Type
A B C
.15 .25 .05;
(iii) for annuities and guaranteed interest contracts valued on an issue year basis other than those with no cash settlement options, which do not guarantee interest on considerations received more than one year after issue or purchase and for annuities and guaranteed interest contracts valued on a change in fund basis which do not guarantee interest rates on considerations received more than twelve months beyond the valuation date, the factors shown in sub-subitem (i) of this subitem or derived in sub-subitem (ii) increased by:
Plan Type
A B C
.05 .05 .05;
(iv) for other annuities with cash settlement options and guaranteed interest contracts with cash settlement options, the guarantee duration is the number of years for which the contract guarantees interest rates in excess of the calendar year statutory valuation interest rate for life insurance policies with guarantee duration in excess of twenty years. For other annuities with no cash settlement options and for guaranteed interest contracts with no cash settlement options, the guarantee duration is the number of years from the date of issue or date of purchase to the date annuity benefits are scheduled to commence.
(d) Plan type as used in the above tables is defined as:
(i) Plan Type A:
At any time policyholder may withdraw funds only:
a. with an adjustment to reflect changes in interest rates or asset values since receipt of the funds by the insurer;
b. without the adjustment but in installments over five years or more;
c. as an immediate life annuity; or
d. no withdrawal permitted;
(ii) Plan Type B:
Before expiration of the interest rate guarantee, policyholder may withdraw funds only:
a. with an adjustment to reflect changes in interest rates or asset values since receipt of the funds by the insurer;
b. without the adjustment but in installments over five years or more; or
c. no withdrawal permitted. At the end of interest rate guarantee, funds may be withdrawn without the adjustment in a single sum or installments over less than five years;
(iii) Plan Type C:
Policyholder may withdraw funds before expiration of interest rate guarantee in a single sum or installments over less than five years either:
a. without adjustment to reflect changes in interest rates or asset values since receipt of the funds by the insurer; or
b. subject only to a fixed surrender charge stipulated in the contract as a percentage of the fund.
An insurer may elect to value guaranteed interest contracts with cash settlement options and annuities with cash settlement options on either an issue year basis or on a change in fund basis. Guaranteed interest contracts with no cash settlement options and other annuities with no cash settlement options must be valued on an issue year basis. As used in this subsection an issue year basis of valuation refers to a valuation basis under which the interest rate used to determine the minimum valuation standard for the entire duration of the annuity or guaranteed interest contract is the calendar year valuation interest rate for the year of issue or year of purchase of the annuity or guaranteed interest contract, and the change in fund basis of valuation refers to a valuation basis under which the interest rate used to determine the minimum valuation standard applicable to each change in the fund held under the annuity or guaranteed interest contract is the calendar year valuation interest rate for the year of the change in the fund.
(4) The Reference Interest Rate referred to in item (2) of this subsection is defined as:
(a) for all life insurance, the lesser of the average over a period of thirty-six months and the average over a period of twelve months, ending on June thirtieth of the calendar year next preceding the year of issue, of Moody's Corporate Bond Yield Average--Monthly Average Corporates, as published by Moody's Investors Service, Inc.;
(b) for single premium immediate annuities and for annuity benefits involving life contingencies arising from other annuities with cash settlement options and guaranteed interest contracts with cash settlement options, the average over twelve months, ending on June thirtieth of the calendar year of issue or year of purchase, of Moody's Corporate Bond Yield Average--Monthly Average Corporates, as published by Moody's Investors Service, Inc.;
(c) for other annuities with cash settlement options and guaranteed interest contracts with cash settlement options, valued on a year of issue basis, except as stated in subitem (b) with guarantee duration in excess of ten years, the lesser of the average over thirty-six months and the average over twelve months, ending on June thirtieth of the calendar year of issue or purchase, of Moody's Corporate Bond Yield Average--Monthly Average Corporates, as published by Moody's Investors Service, Inc.;
(d) for other annuities with cash settlement options and guaranteed interest contracts with cash settlement options, valued on a year of issue basis, except as stated in subitem (b), with guarantee duration of ten years or less, the average over twelve months, ending on June thirtieth of the calendar year of issue or purchase, of Moody's Corporate Bond Yield Average--Monthly Average Corporates, as published by Moody's Investors Service, Inc.;
(e) for other annuities with no cash settlement options and for guaranteed interest contracts with no cash settlement options, the average over twelve months, ending on June thirtieth of the calendar year of issue or purchase, of Moody's Corporate Bond Yield Average--Monthly Average Corporates, as published by Moody's Investors Service, Inc.;
(f) for other annuities with cash settlement options and guaranteed interest contracts with cash settlement options, valued on a change in fund basis, except as stated in subitem (b), the average over twelve months, ending on June thirtieth of the calendar year of the change in the fund, of Moody's Corporate Bond Yield Average--Monthly Average Corporates, as published by Moody's Investors Service, Inc.;
(5) If Moody's Corporate Bond Yield Average--Monthly Average Corporates is no longer published by Moody's Investors Service, Inc., or if the National Association of Insurance Commissioners determines that Moody's Corporate Bond Yield Average--Monthly Average Corporates as published by Moody's Investors Service, Inc., is no longer appropriate for the determination of the reference interest rate, then an alternative method for determination of the reference interest rate, which is adopted by the National Association of Insurance Commissioners and approved by regulation promulgated by the director, may be substituted.
(E) Except as otherwise provided in subsections (F) and (I), reserves according to the director's or designee's reserve valuation method, for the life insurance and endowment benefits of policies providing for a uniform amount of insurance and requiring the payment of uniform premiums, are the excess, if any, of the present value, at the date of valuation, of future guaranteed benefits provided for by the policies, over the then present value of future modified net premiums. The modified net premiums for the policy are the uniform percentage of the respective contract premiums for the benefits that the present value, at the date of issue of the policy, of the modified net premiums is equal to the sum of the then present value of the benefits provided for by the policy and the excess of item (1) over item (2), as follows:
(1) A net level annual premium equal to the present value, at the date of issue, of the benefits provided for after the first policy year, divided by the present value, at the date of issue, of an annuity of one per annum payable on the first and each subsequent anniversary of the policy on which a premium falls due. However, the net level annual premium may not exceed the net level annual premium on the nineteen year premium whole life plan for insurance of the same amount at an age one year higher than the age of issue of the policy.
(2) A net one year term premium for the benefits provided for in the first policy year. For a life insurance policy issued after December 31, 1985, for which the contract premium in the first policy year exceeds that of the second year and for which no comparable additional benefit is provided in the first year for the excess and which provides an endowment benefit or a cash surrender value or a combination of them in an amount greater than the excess premium, the reserve according to the director's or designee's reserve valuation method as of a policy anniversary occurring on or before the assumed ending date defined in this section as the first policy anniversary on which the sum of an endowment benefit and cash surrender value then available is greater than the excess premium, except as otherwise provided in subsection (I), is the greater of the reserve as of the policy anniversary calculated as described in the preceding paragraph and the reserve as of the policy anniversary calculated as described in that paragraph, but with the value defined in item (1) being reduced by fifteen percent of the amount of the excess first year premium, all present values of benefits and premiums being determined without reference to premiums or benefits provided for by the policy after the assumed ending date, the policy being assumed to mature on the date as an endowment, and the cash surrender value provided on the date being considered as an endowment benefit. In making the above comparison the mortality and interest bases stated in subsection (C)(1) and (D) shall be used.
Reserves according to the director's or designee's reserve valuation method for: life insurance policies providing for a varying amount of insurance or requiring the payment of varying premiums, group annuity and pure endowment contracts purchased under a retirement plan or plan of deferred compensation, established or maintained by an employer including a partnership or sole proprietorship or by an employee organization, or both, other than a plan providing individual retirement accounts or individual retirement annuities under Section 408 of the Internal Revenue Code, as amended, disability and accidental death benefits in all policies and contracts, and all other benefits, except life insurance and endowment benefits in life insurance policies and benefits provided by all other annuity and pure endowment contracts, must be calculated by a method consistent with the principles of subsection (D), except extra premiums charged because of impairments or special hazards must be disregarded in the determination of modified net premiums.
(F) This subsection applies to all annuity and pure endowment contracts other than group annuity and pure endowment contracts purchased under a retirement plan or plan of deferred compensation, established or maintained by an employer including a partnership or sole proprietorship, or by an employee organization, or both, other than a plan providing individual retirement accounts or individual retirement annuities under Section 408 of the Internal Revenue Code, as amended. Reserves according to the director's or designee's annuity reserve method for benefits under annuity or pure endowment contracts, excluding disability and accidental death benefits in the contracts, is the greatest of the respective excesses of the present values, at the date of valuation, of the future guaranteed benefits, including guaranteed nonforfeiture benefits, provided for by the contracts at the end of each respective contract year, over the present value, at the date of valuation, of future valuation considerations derived from future gross considerations, required by the terms of the contract, that become payable before the end of the respective contract year. The future guaranteed benefits must be determined by using the mortality table, if any, and the interest rate, or rates, specified in the contracts for determining guaranteed benefits. The valuation considerations are the portions of the respective gross considerations applied under the terms of the contracts to determine nonforfeiture values.
(G) (1) An insurer's aggregate reserves for all life insurance policies, excluding disability and accidental death benefits, issued after March 23, 1960, must not be less than the aggregate reserves calculated in accordance with the methods set forth in subsections (E), (F), (I), and (J) and the mortality table or tables and rate or rates of interest used in calculating nonforfeiture benefits for the policies.
(2) The aggregate reserves for all policies, contracts, and benefits must not be less than the aggregate reserves determined by the qualified actuary to be necessary to render the opinion required by subsection (B).
(H) Reserves for all policies and contracts issued before March 24, 1960, may be calculated, at the option of the insurer, according to the standards which produce greater aggregate reserves for all the policies and contracts than the minimum reserves required by the laws in effect immediately before the date. Reserves for a category of policies, contracts, or benefits established by the director or designee, after March 23, 1960, may be calculated, at the option of the insurer, according to the standards which produce greater aggregate reserves for the category than those calculated according to the minimum standard provided in this section, but the rate or rates of interest used for policies and contracts, other than annuity and pure endowment contracts, must not be higher than the corresponding rate or rates of interest used in calculating nonforfeiture benefits. An insurer which adopts a standard of valuation producing greater aggregate reserves than those calculated according to the minimum standard provided in this section, with the approval of the director or designee, may adopt a lower standard of valuation, but not lower than the minimum provided in this section. However, for purposes of this subsection, the holding of additional reserves previously determined by a qualified actuary to be necessary to render the opinion required by subsection (B) must not be deemed to be the adoption of a higher standard of valuation.
(I) If in a contract year the gross premium charged by a life insurer on a policy or contract is less than the valuation net premium for the policy or contract calculated by the method used in calculating the reserve but using the minimum valuation standards of mortality and rate of interest, the minimum reserve required for the policy or contract is the greater of either the reserve calculated according to the mortality table, rate of interest, and method actually used for the policy or contract, or the reserve calculated by the method actually used for the policy or contract but using the minimum valuation standards of mortality and rate of interest and replacing the valuation net premium by the actual gross premium in each contract year for which the valuation net premium exceeds the actual gross premium. The minimum valuation standards of mortality and rate of interest referred to in this subsection are those standards stated in subsections (C)(1) and (D). For a life insurance policy issued after December 31, 1985, for which the gross premium in the first policy year exceeds that of the second year and for which no comparable additional benefit is provided in the first year for the excess and which provides an endowment benefit or a cash surrender value or a combination of them in an amount greater than the excess premium, this subsection must be applied as if the method actually used in calculating the reserve for the policy were the method described in subsection (E), ignoring the second paragraph of subsection (E). The minimum reserve at each policy anniversary of the policy is the greater of the minimum reserve calculated in accordance with subsection (E), including the second paragraph of that subsection, and the minimum reserve calculated in accordance with this subsection.
(J) For a plan of life insurance which provides for future premium determination, the amounts of which are to be determined by the insurer based on then estimates of future experience, or for a plan of life insurance or annuity which is of a nature so that the minimum reserves cannot be determined by the methods described in subsections (E), (F), and (I), the reserves which are held under the plan must be:
(1) appropriate in relation to the benefits and the pattern of premiums for that plan;
(2) computed by a method which is consistent with the principles of this Standard Valuation Law, as determined by regulations promulgated by the director.
(K) This section is known as the `Standard Valuation Law'.
Section 38-9-190. A company authorized to transact insurance in this State shall maintain reserves in an amount estimated in the aggregate as being sufficient to provide for the payment of all losses or claims arising by the date of an annual or other statement, whether reported or unreported, which are unpaid as of that date and for which the insurer may be liable and also reserves in an amount estimated to provide for the expenses of adjustment or settlement of these claims. The reserves for unpaid losses and loss expenses under policies of personal injury liability insurance, employer's liability insurance, and workers' compensation insurance must be calculated in accordance with regulations the department prescribes. A company authorized to write these kinds of insurance shall file with its annual statement schedules of its experience in the form the director or designee requires. Credit for reinsurance is allowed a ceding insurer as an asset or a deduction from reserves required by this section only as provided in Section 38-9-200 or 38-9-210.
Section 38-9-200. (A) Credit for reinsurance must be allowed a domestic ceding insurer as an asset or a deduction from liability on account of reinsurance ceded only when the reinsurer meets the requirements of subsection (B), (C), (D), (E), or (F). If meeting the requirements of subsection (D) or (E), the requirements of subsection (G) must be met also.
(B) Credit must be allowed when the reinsurance is ceded to an assuming insurer which is licensed to transact insurance or reinsurance in this State or approved as a reinsurer by the director or designee provided by Section 38-5-60.
(C) Credit must be allowed when the reinsurance is ceded to an assuming insurer which is accredited as a reinsurer in this State. An accredited reinsurer is one which:
(1) files with the director or designee evidence of its submission to this state's jurisdiction;
(2) submits to this state's authority to examine its books and records;
(3) is licensed to transact insurance or reinsurance in at least one state, or for a United States branch of an alien assuming insurer is entered through and licensed to transact insurance or reinsurance, in at least one state;
(4) pays an initial submission fee of four hundred dollars and annually pays a four hundred dollar fee by March first;
(5) files annually with the director or designee a copy of its annual statement filed with the insurance department of its state of domicile and a copy of its most recent audited financial statement and:
(a) maintains a surplus as regards policyholders of not less than twenty million dollars and whose accreditation has not been denied by the director or designee within ninety days of its submission; or
(b) maintains a surplus as regards policyholders of less than twenty million dollars and whose accreditation has been approved by the director or designee. No credit is allowed a domestic ceding insurer if the assuming insurer's accreditation has been revoked by the director or designee after notice and hearing.
(D) Credit must be allowed when the reinsurance is ceded to an assuming insurer which is domiciled and licensed in, or for a United States branch of an alien assuming insurer is entered through, a state which employs standards regarding credit for reinsurance substantially similar to those applicable under this statute, and the assuming insurer or United States branch of an alien assuming insurer:
(1) maintains a surplus as regards policyholders of not less than twenty million dollars;
(2) submits to the authority of this State to examine its books and records. However, the requirement of item (1) does not apply to reinsurance ceded and assumed pursuant to pooling arrangements among insurers in the same holding company system.
(E) (1) Credit must be allowed when the reinsurance is ceded to an assuming insurer which maintains a trust fund in a qualified United States financial institution, defined in Section 38-9-220(B), for the payment of the valid claims of its United States policyholders and ceding insurers and their assigns and successors in interest. The assuming insurer shall report annually to the director or designee information substantially the same as that required to be reported on the National Association of Insurance Commissioners annual statement form by licensed insurers to enable the director or designee to determine the sufficiency of the trust fund. For a single assuming insurer, the trust must consist of a trusteed account representing the assuming insurer's liabilities attributable to business written in the United States and, in addition, the assuming insurer shall maintain a trusteed surplus of not less than twenty million dollars. For a group of individual unincorporated underwriters, the trust must consist of a trusteed account representing the group's liabilities attributable to business written in the United States and, in addition, the group shall maintain a trusteed surplus of which one hundred million dollars must be held jointly for the benefit of United States ceding insurers of a member of the group. The group shall make available to the director or designee an annual certification of the solvency of each underwriter by the group's domiciliary regulator and its independent public accountants.
(2) For a group of incorporated insurers under common administration which complies with the filing requirements contained in item (1), has transacted continuously an insurance business outside the United States for at least three years immediately before making application for accreditation, submits to this state's authority to examine its books and records and bears the expense of the examination, and has aggregate policyholders' surplus of ten billion dollars, the trust must be in an amount equal to the group's several liabilities attributable to business ceded by United States ceding insurers to a member of the group pursuant to reinsurance contracts issued in the name of the group. The group also shall maintain a joint trusteed surplus of which one hundred million dollars must be held jointly for the benefit of United States ceding insurers of a member of the group as additional security for liabilities. Each member of the group shall make available to the director or designee an annual certification of the member's solvency by the member's domiciliary regulator and its independent public accountant.
(3) The trust must be established in a form approved by the director or designee. The trust instrument must provide that contested claims must be valid and enforceable upon the final order of a court of competent jurisdiction in the United States. The trust must vest legal title to its assets in the trustees of the trust for its United States policyholders and ceding insurers and their assigns and successors in interest. The trust and the assuming insurer are subject to examination determined by the director or designee. The trust must remain in effect for as long as the assuming insurer has outstanding obligations due under the reinsurance agreements subject to the trust.
(4) No later than February twenty-eighth each year the trustees of the trust shall report to the director or designee in writing setting forth the balance of the trust and listing the trust's investments at the preceding year end and shall certify the date of termination of the trust, if so planned, or certify that the trust may not expire before the next following December thirty-first.
(F) Credit must be allowed when the reinsurance is ceded to an assuming insurer not meeting the requirements of subsection (B), (C), (D), or (E) but only with respect to the insurance of risks located in jurisdictions where the reinsurance is required by applicable law or regulation of that jurisdiction.
(G) If the assuming insurer is not licensed or accredited to transact insurance or reinsurance in this State, the credit permitted by subsections (D) and (E) must not be allowed unless the assuming insurer agrees in the reinsurance agreements:
(1) that when the assuming insurer fails to perform its obligations under the terms of the reinsurance agreement, the assuming insurer, at the request of the ceding insurer, shall submit to the jurisdiction of a court of competent jurisdiction in a state of the United States, comply with all requirements necessary to give the court jurisdiction, and abide by the final decision of the court or of an appellate court in an appeal;
(2) to designate the director or designee or a designated attorney as its true and lawful attorney upon whom may be served lawful process in an action, a suit, or a proceeding instituted by or on behalf of the ceding company. This subsection does not conflict with or override the obligation of the parties to a reinsurance agreement to arbitrate their disputes if an obligation is created in the agreement.
(H) The director may promulgate regulations to implement the provisions of this section and Section 38-9-210.
Section 38-9-210. A reduction from liability for the reinsurance ceded by a domestic insurer to an assuming insurer not meeting the requirements of Section 38-9-200 must be allowed in an amount not exceeding the liabilities carried by the ceding insurer. The reduction must be in the amount of funds held by or on behalf of the ceding insurer, including funds held in trust for the ceding insurer, under a reinsurance contract with the assuming insurer as security for the payment of obligations, if the security is held in the United States subject to withdrawal solely by and under the exclusive control of the ceding insurer or, for a trust, held in a qualified United States financial institution, defined in Section 38-9-220(B). This security may be in the form of:
(1) cash;
(2) securities listed by the Securities Valuation Office of the National Association of Insurance Commissioners and qualifying as admitted assets under Section 38-11-100;
(3) clean, irrevocable, unconditional letters of credit issued or confirmed by a qualified United States financial institution defined in Section 38-9-220(A) no later than December thirty-first of the year for which filing is being made and in the possession of the ceding company on or before the filing date of its annual statement. Letters of credit meeting applicable standards of issuer acceptability as of the dates of their issuance or confirmation, notwithstanding the issuing or confirming institution's subsequent failure to meet applicable standards of issuer acceptability, continue to be acceptable as security until their expiration, extension, renewal, modification, or amendment, whichever first occurs;
(4) other form of security acceptable to the director or designee.
Section 38-9-220. (A) For purposes of Section 38-9-210, a `qualified United States financial institution' means an institution that:
(1) is organized or, for a United States office of a foreign banking organization, licensed under the laws of the United States or its state;
(2) is regulated, supervised, and examined by federal or state authorities having regulatory authority over banks and trust companies;
(3) has been determined by the director or designee or the Securities Valuation Office of the National Association of Insurance Commissioners to meet standards of financial condition and standing necessary and appropriate to regulate the quality of financial institutions whose letters of credit are acceptable to the director or designee.
(B) For purposes of those provisions of this law specifying those institutions that are eligible to act as a fiduciary of a trust, a `qualified United States financial institution' means an institution that is:
(1) organized or, for a United States branch or agency office of a foreign banking organization, licensed under the laws of the United States or its state and has been granted authority to operate with fiduciary powers;
(2) regulated, supervised, and examined by federal or state authorities having regulatory authority over banks and trust companies."
Name changed, etc.
SECTION 536. Chapter 11, Title 38 of the 1976 Code is amended to read:
"CHAPTER 11
Investments
Section 38-11-10. The legislative intent is that policyholder obligations and the minimum capital or guaranty fund and surplus required by law must be covered only by assets of unquestioned integrity and stability and that assets in excess of those required to cover policyholder obligations, minimum capital or guaranty funds, and surplus may be invested by insurers at the discretion of the insurers. However, the assets must not be invested in assets prohibited under Section 38-11-90. The purpose of this section is to protect and further the interests of policyholders, claimants, creditors, and the public by providing standards for the development and administration of programs for the investment of the assets of companies organized under this chapter. These standards and the investment programs developed by companies must take into account the safety of the company's principal, investment yield, and growth, stability in the value of the investment, and liquidity necessary to meet the company's expected business needs, and investment diversification.
Section 38-11-20. This chapter applies to all domestic insurers. Foreign insurers and United States branches of alien insurers transacting an insurance business in this State shall maintain investments of the same general type and character as specified for domestic insurers, except that investments of substantially the same quality as those specified herein, authorized by the law of the insurer's state of domicile, or state of entry if an alien insurer, may be recognized as eligible investments for purposes of this chapter by the director or his designee in the sound exercise of his discretion.
Section 38-11-30. As used in this chapter, unless the context requires otherwise, `policyholder obligations' means those liabilities of the insurer to, or for, its policyholders arising out of its policies and to its creditors and includes the liabilities required to be included in the insurer's annual statement, including, but not limited to (a) the unearned premium reserve, (b) reserves required by applicable mortality or morbidity tables, and (c) claim or loss reserves including incurred but not reported claims. `Policyholder obligations' does not include that portion of the insurer's capital or guaranty fund, nor that portion of its surplus, in excess of the minimum capital, or guaranty fund, and surplus required by law for such insurer, nor the Mandatory Securities Valuation Reserve.
Section 38-11-40. Every insurer shall have and maintain investments, of the classes described in this section, to the extent of policyholder obligations and minimum capital, or guaranty fund, and surplus less, with respect to insurers other than life insurers, an amount equal to thirty percent of its surplus as regards policyholders. In no event may insurers, other than life insurers, have and maintain investments of the character described below less than an amount equal to seventy percent of policyholder obligations and one hundred percent of the minimum required capital, or guaranty fund, and surplus:
(a) Cash, cash funds, and interest accrued thereon on deposit or in savings accounts, under certificates of deposit, or in any other form, in solvent banks and trust companies which have qualified for the insurance protection afforded by the Federal Deposit Insurance Corporation, but the cash or cash funds are not limited to, or by, the amount of insurance protection.
(b) Premiums in the course of collection, including due and deferred premiums of life insurers, other than from agencies or general agencies effectively owned or controlled by, or owning or controlling, the insurer, not more than three months past due, less commissions payable, and installment premiums to the extent of the unearned premium reserve carried on the policies to which the premiums apply, less commissions payable thereon. However, premium balances not more than ninety days past due from agencies or general agencies effectively owned or controlled by, or owning or controlling, the insurer are considered admitted assets of the insurer to the extent that balances due from the agency or general agency are represented by assets of the kinds described in this section as limited by Section 38-11-50.
(c) Reinsurance recoverables, not more than three months past due from solvent, authorized reinsurers, including deposits made with assuming reinsurers, or held by ceding insurers, under reinsurance agreements, but only to the extent that the deposits are available as offsets against liabilities assumed under the reinsurance agreements.
(d) Bonds, notes, warrants, and other securities which are the direct obligations of the United States or for which the faith and credit of the United States are pledged for the payment of principal and interest.
(e) Obligations or stock, where stated, of the following agencies or instrumentalities of the United States, whether or not such obligations are guaranteed by the government:
(1) Commodity Credit Corporation.
(2) Federal intermediate credit banks.
(3) Federal land banks.
(4) Central Bank for Cooperatives.
(5) Federal home loan banks and their stock.
(6) Federal National Mortgage Association and its stock when acquired in connection with sale of mortgage loans to the Federal National Mortgage Association.
(7) Government National Mortgage Association.
(8) Other agencies or instrumentalities of the United States approved by the director or his designee.
(f) Bonds, notes, warrants, and other securities which are the direct obligations of any state or territory of the United States or of the District of Columbia, or for which the full faith and credit of the state, territory, or District of Columbia have been pledged for the payment of principal and interest.
(g) Bonds, notes, warrants, and other securities which are valid and legally authorized obligations, issued, assumed, or guaranteed by any county, city, town, village, municipality, or district of any state or territory of the United States, or by any political subdivision thereof, or by any civil division or public instrumentality of the United States, any state or territory of the United States, or any county, city, town, or district of any state or territory, if, by statutory or other legal requirements applicable thereto, such obligations are payable, both as to principal and interest, from taxes levied, or required by such law to be levied, upon all taxable property or taxable income within the jurisdiction of the governmental unit, or from special revenues pledged or otherwise appropriated or by law required to be appropriated for the purpose of the payment, but not including any obligations payable solely out of special assessments on properties benefitted by local improvements. However, obligations payable out of special revenues pledged or otherwise appropriated or required by law to be appropriated for the purpose of the payment, are eligible for purposes of this section only if the obligations are eligible for amortization in accordance with regulations promulgated by the director after notice and hearing.
(h) Bonds, notes, warrants, or other securities of Canada, or of any of its provinces, or of any municipality in Canada, if the municipal obligations are required or permitted to be amortized in the annual statement prescribed by law, or any bonds fully guaranteed by Canada, or any of its provinces or municipalities, if the bonds are payable in lawful money of the United States or Canada.
(i) Bonds, notes, or debentures of solvent corporations existing under the laws of the United States or any of its states or territories, the District of Columbia, Canada, or any of its provinces, if the obligations are qualified under any of the following:
(1) Obligations which are secured by adequate collateral security and bear fixed interest if, during each of the last two, and one additional year, of the five fiscal years next preceding the date of acquisition by the insurer, the net earnings of the issuing, assuming, or guaranteeing corporation available for its fixed charges have not been less than one and one-fourth times the total of its fixed charges for that year. In determining the adequacy of collateral security not more than one-third of the total value of the required collateral may consist of stock other than preferred or guaranteed stocks. The director or his designee may approve the collateral as adequate notwithstanding that more than one third of the total value of the required collateral consists of stocks other than preferred or guaranteed stocks if he finds the collateral to be adequate otherwise and states, in writing, his reasons for so finding.
(2) Fixed interest-bearing obligations other than those described in (1) above, if the net earnings of the issuing, assuming, or guaranteeing corporation available for its fixed charges for a period of five fiscal years next preceding the date of acquisition by the insurer have averaged per year not less than one and one-half times its annual fixed charges applicable to that period and during the last two years of the period the net earnings have been not less than one and one-half times its fixed charges for those years. Notwithstanding the failure of an issuing corporation to meet the test with respect to its fixed interest-bearing obligations as provided in this item, the obligations must be considered to be eligible hereunder if they are secured or guaranteed by leases or other contracts as long as the guaranteeing, leasing, or contracting corporation fulfills the requirements of this section with respect to its fixed interest obligations.
(3) Adjustment income or other contingent interest obligations if the net earnings of the issuing, assuming, or guaranteeing corporation available for its fixed charges for a period of five fiscal years next preceding the date of acquisition by the insurer have averaged per year not less than one and one-half times the sum of its average annual fixed charges and its average annual maximum contingent interest applicable to that period and if during each of the last two years of the period the net earnings have been not less than one and one-half times the sum of its fixed charges and maximum contingent interest for those years. As used herein, `net earnings available for fixed charges' means net income after deducting operating and maintenance expenses, taxes other than federal and state income taxes, depreciation, and depletion, but excluding extraordinary nonrecurring items of income or expenses appearing in the regular financial statement of the corporation. `Fixed charges' includes interest on funded and unfunded debt and amortization of debt discount.
(j) Preferred or guaranteed stocks or shares, other than common stocks, of solvent institutions existing under the laws of the United States or of any of its states, districts, or territories, if all of the prior obligations and prior preferred stocks, if any, of the institution at the date of acquisition by the insurer are eligible as investments under this chapter and if qualified under either of:
(1) Preferred stocks or shares are considered qualified if both of these requirements are met:
(i) The net earnings of the institution available for its fixed charges for a period of five fiscal years next preceding the date of acquisition by the insurer shall have averaged per year not less than one and one-half times the sum of its average annual fixed charges, if any, its average annual maximum contingent interest, if any, and its average annual preferred dividend requirements applicable to the period; and
(ii) During each of the last two years of the period the net earnings must have been not less than one and one-half times the sum of its fixed charges, contingent interest, and preferred dividend requirements. `Preferred dividend requirements' means cumulative or noncumulative dividends whether paid or not.
(2) Guaranteed stocks or shares are considered qualified if the assuming or guaranteeing institution meets the requirements of Section 38-11-40(i)(2) construed to include as a fixed charge the amount of guaranteed dividends of the issue or the rental covering the guarantee of the dividends.
(k) If a life insurer, loans to policyholders upon pledge of the policy as collateral security, amounts not exceeding the cash surrender values of the policies, or loans against pledge or assignment of any of its supplementary contracts or other contracts or obligations, as long as the loan is adequately secured by pledges or assignments.
(l) If a life insurer, bonds, or evidences of debts secured by first mortgages or deeds of trust on improved unencumbered real property or the equity of the seller of any of this property in the contract for a deed covering the entire balance due on a bona fide sale of property located in the United States or any of its states or territories or the District of Columbia; but no mortgage loan or investment in the equity of the seller in the contract for deed may exceed at the time of acquisition seventy-five percent of the fair market value of the property. Real estate is not considered to be encumbered within the meaning of this chapter by reason of the existence of taxes or assessments which are not delinquent, instruments creating or reserving mineral, oil, or timber rights, rights-of-way, joint driveways, sewer rights, rights in walls, nor by reason of building restrictions or other restrictive covenants, nor when the real estate is subject to lease in whole or in part whereby rents or profits are reserved to the owner if in any event the security for the loan or investment is a first lien upon the real estate. The value of any mineral, oil, timber, or similar right reserved may not be included in the fair market value of the property.
(m) If a life insurer, evidences of debt secured by first mortgages or deeds of trust upon leasehold estates running for a term not less than ten years beyond the maturity of the loan as made or as extended, in improved real property, otherwise unencumbered, if the mortgagee is entitled to be subrogated to all rights under the leasehold. No investment under this item may exceed seventy-five percent of the fair market value of the leasehold estate.
(n) If a life insurer, bonds or notes secured by mortgage or trust deed guaranteed or insured as to principal in whole or in part by the Administrator of Veterans' Affairs pursuant to the provisions of Title III of an Act of Congress of the United States of June 22, 1944, entitled the `Service Men's Readjustment Act of 1944', as amended, or bonds or notes secured by mortgage or trust deed guaranteed or insured by the Federal Housing Administration under the terms of an Act of Congress of the United States of June 27, 1936, entitled the `National Housing Act', as amended.
(o) Land and buildings to the extent used and occupied for home office purposes together with other real estate as is required for the insurer's convenient transaction of its business at net value plus improvements less normal depreciation.
(p) If a life insurer, improved unencumbered real estate for the production of income or property now under lease or being constructed under a definite agreement providing for lease to solvent institutions, individuals, or governmental agencies for governmental, professional, commercial, residential, or industrial purposes other than agricultural, horticultural, ranch, mining, mineral, or oil purposes at net value plus improvements less normal depreciation; however, upon approval by the director or his designee, the real estate investment may be encumbered or need not be under lease.
(q) Loans secured by pledge of collateral determined by the director or his designee to be adequate and appropriate for investment of policyholder obligation funds of the insurer.
(r) Common stocks of any solvent corporation incorporated under the laws of the United States or any state, or Canada, or any of its provinces, if the stocks of the corporation are listed or admitted to trading on a securities exchange located in the United States, which exchange is approved or recognized by the Securities and Exchange Commission of the United States or if the stocks are listed in the Manual on Valuation of Securities issued by the Committee on Valuation of Securities of the National Association of Insurance Commissioners.
(s) Any investment not specifically included herein nor prohibited under Section 38-11-90, if and to the extent as, the director or his designee finds the investment appropriate for investment of policyholder obligations funds. This finding is to be based upon the standards prescribed by Section 38-11-10.
Section 38-11-50. (A) Investments made by insurers to cover policyholder obligations and their minimum capital or guaranty fund and surplus required by law, provided in Section 38-11-40, are subject to:
(1) None of the securities in Section 38-11-40 are eligible for the purposes of that section if, within five years immediately preceding, the obligor has defaulted in the payment of principal or interest on its bonds, warrants, or other securities.
(2) With respect to investments under Section 38-11-40(g), not more than twenty percent of the insurer's policyholder obligations may be invested in the securities of a county, city, town, village, municipality, or district of a state or territory of the United States or its political subdivisions or a civil division or public instrumentality of the United States. However, this limitation does not apply to an investment which qualifies for sinking fund purposes under the laws of this State.
(3) Investments in Section 38-11-40(h) may not exceed ten percent of the insurer's policyholder obligations.
(4) Investments in Section 38-11-40(i) may not exceed sixty-six and two-thirds percent of the insurer's policyholder obligations, nor may more than ten percent of the insurer's policyholder obligations be invested in one investment.
(5) Investments in Section 38-11-40(j) may not exceed fifteen percent of the insurer's policyholder obligations.
(6) Investments in Section 38-11-40(l), (m), and (n) may not exceed in the aggregate sixty-six and two-thirds percent of the insurer's policyholder obligations, nor, with respect to investments under these items, may more than ten percent of the insurer's policyholder obligations be invested in one investment or in one project, subdivision, or transaction or series of related transactions.
(7) Investments in Section 38-11-40(o) may not exceed ten percent of the insurer's policyholder obligations.
(8) Investments in Section 38-11-40(p) may not exceed ten percent of the insurer's policyholder obligations. Where a life insurer does not, wholly or in part, avail itself of Section 38-11-40(o), as limited by Section 38-11-40(f), the investments under Section 38-11-40(p) may be increased to the extent of the unused portion, but the life insurer's investments under Section 38-11-40(p) may not exceed fifteen percent of the insurer's policyholder obligations. However, this limitation does not apply to real estate acquired by bona fide mortgage foreclosure if the insurer has had title to the real estate for less than five years.
(9) Investments in Section 38-11-40(q) may not exceed ten percent of the insurer's policyholder obligations.
(10) Investments in Section 38-11-40(r) may not exceed ten percent of the insurer's policyholder obligations.
(11) Investments authorized under Section 38-11-40(s) may not exceed ten percent of the insurer's policyholder obligations.
(B) For purposes of the limitations contained in this section:
(1) Except as otherwise provided in item (2), investments in Section 38-11-40 must be valued in accordance with stated values or standards published by the Securities Valuation Office of the National Association of Insurance Commissioners in its Valuations of Securities Manual. Investments for which the National Association of Insurance Commissioners has not published valuations or standards must be valued as follows:
(a) Obligations having a fixed term and rate, if not in default as to principal or interest, must be valued, if purchased at par, at the par value and, if purchased above or below par, on the basis of the purchase price adjusted so as to bring the value to par at maturity and so as to yield in the meantime the effective rate of interest at which the purchase was made.
(b) Common, preferred, or guaranteed stocks must be valued at their market value or, at the option of the company, may be valued at the purchase price if it is less than market value.
(c) Other securities investments must be valued in accordance with regulations promulgated pursuant to subsection (D).
(2) Investments not provided for in item (1), including real property, must be valued in accordance with regulations promulgated pursuant to subsection (D), but they must not be valued at more than their purchase price. Purchase price for real property includes capitalized permanent improvements less depreciation spread evenly over the life of the property or, at the option of the company, less depreciation computed on a basis permitted under the Internal Revenue Code and its regulations. Investments affected by permanent declines in value must be valued at not more than their market value. However, mortgage loans may be valued at amortized value.
(C) An investment, including real property, not purchased by a company but acquired in satisfaction of a debt or otherwise must be valued in accordance with the applicable procedures for that type of investment contained in this section. For purposes of applying the valuation procedures, the purchase price is the market value at the time the investment is acquired or, for an investment acquired in satisfaction of debt, the amount of the debt including interest, taxes, and expenses, whichever is less.
(D) The director shall promulgate regulations for determining and calculating values to be used in financial statements submitted to the department of Insurance for investments not subject to published National Association of Insurance Commissioner's valuation standards.
Section 38-11-60. An insurer owning not less than eighty percent of all classes of the outstanding stock of one or more other insurers transacting an insurance business may, for the purposes of complying with Section 38-11-40, so comply on the basis of a consolidated statement. However, every subsidiary must fully comply with the requirements of Section 38-11-40.
Section 38-11-70. An insurer not in compliance with the requirements imposed by this chapter shall within thirty days notify the department. Upon being notified, or upon otherwise ascertaining noncompliance, the director or his designee shall order the insurer to make good the deficiency within thirty days, and he shall, upon failure of the insurer to do so, revoke or suspend the license of the insurer until the deficiency has been made good. However, if noncompliance results from the acquisition of the property or security through foreclosure or otherwise results from a default in a loan or other obligation and the acquisition has been rendered necessary in order to protect the investment or avoid greater loss, the director or his designee may further extend the period not to exceed one hundred eighty days if the insurer establishes that the extension is necessary, that it will not prejudice the policyholders and that the insurer has, in good faith, entered upon a course of action calculated to terminate the noncompliance on or before the expiration of the extended period.
Further, investments in real estate and mortgage loans on real estate already made and recognized as admitted assets as of December 31, 1970, are not affected by the restrictions and limitations of this chapter, and are considered as assets covering policyholder obligations and minimum capital, or guaranty fund, and surplus required by law.
Section 38-11-80. No insurer may make any loan or investment, except the policy loans of a life insurer, or any sale or exchange unless authorized, approved, or ratified by its board of directors or other governing body or by a committee charged by the board of directors, other governing body, or the bylaws with the duty of making the investment, loan, sale, or exchange. The minutes of the committee must be submitted to the board of directors or other governing body at the next meeting of the board of directors or other governing body.
Section 38-11-90. No insurer may invest any of its funds in or lend any of its funds upon the security of:
(a) Issued shares of its own capital stock except with the written permission of the director or his designee which may be granted, at his discretion, where the purpose of the acquisition is in connection with a lawful plan for mutualization of the insurer, or in furtherance of a retirement, pension, or incentive program for officers or employees of the insurer, which plan has been approved by the stockholders, or if otherwise the acquisition is shown to be for the benefit of all stockholders; but in no event may shares so acquired be admissible as an asset or shown as an asset in any financial statement of the insurer.
(b) Securities issued by a corporation which is insolvent at the time of the proposed investment except upon the written approval of the director or his designee.
(c) Securities which will subject the insurer to any assessment other than for taxes or wages.
(d) Any investment or security which is found by the director or his designee to be designed to evade any prohibition of this chapter.
Section 38-11-100. The assets enumerated in Section 38-11-40 and other assets not prohibited under Section 38-11-90 nor required to be scheduled as nonadmitted assets in the annual statement, as prescribed by the director or his designee, are considered admitted assets and all these assets must be valued in accordance with the standards prescribed in item (l) of Section 38-11-50.
Section 38-11-110. All investments of insurers authorized to do business in this State, for which no rule or method of valuation has been otherwise provided, must be valued in the discretion of the director or his designee at their fair market value, appraised value, or at amounts determined by the director or his designee as their fair market value. If any valuation of an investment by an insurer appears to be an unreasonable estimate of its true value, the director or his designee has the authority to cause the investment to be appraised, and the appraised value must be substituted as the true value. The appraisal must be made by two disinterested and competent persons, one to be appointed by the director and one to be appointed by the insurer. In the event these two persons fail to agree, they shall appoint a third disinterested and competent person, and the estimate of the value of the investment, as arrived at by these three persons, must be substituted as the true value."
Name changed, etc.
SECTION 537. Chapter 13, Title 38 of the 1976 Code is amended to read:
"CHAPTER 13
Examinations, Investigations, Records, and Reports
Section 38-13-10. (A) The director or his examiners may conduct an examination under this chapter of an insurer as often as the director or his designee consider appropriate but, at a minimum, shall conduct an examination of every insurer licensed in this State not less frequently than once every five years. When the director or his designee considers it prudent for the protection of policyholders in this State, he may examine or have examined an insurer applying for admission in this State. In scheduling and determining the nature, scope, and frequency of the examinations, the director or his designee shall consider compliance with relevant South Carolina laws and regulations, the results of financial statement analyses and ratios, changes in management or ownership, actuarial opinions, reports of independent certified public accountants, and other criteria set forth in the Examiners' Handbook adopted by the National Association of Insurance Commissioners and in effect when the director or his designee exercises his authority under this subsection.
(B) For purposes of completing an examination of an insurer under this chapter, the director or his designee may examine or investigate a person or his business in a manner considered necessary or material by the director or his designee.
(C) In lieu of an examination under this section of a foreign or an alien insurer licensed in this State, the director or his designee may accept an examination report on the insurer prepared by the insurance department for the insurer's state of domicile or port-of-entry state until January 1, 1994. After that time, the reports may be accepted only if one or both of the following apply:
(1) The insurance department at the time of the examination was accredited under the National Association of Insurance Commissioners' Financial Regulation Standards and Accreditation Program;
(2) The examination is performed with the participation of one or more examiners who are employed by the accredited insurance department, and who, after a review of the examination work papers and report, state under oath that the examination was performed in a manner consistent with the standards and procedures required by their department.
Section 38-13-20. (A) Upon determining that an examination must be conducted, the director or his designee shall issue an examination warrant appointing one or more examiners to perform the examination and instructing them as to the scope of the examination. In conducting the examination, the examiner shall observe South Carolina laws and regulations and those guidelines and procedures set forth in the Examiners' Handbook adopted by the National Association of Insurance Commissioners. The director also may employ other guidelines or procedures he considers appropriate.
(B) Every person or insurer and his or its officers, directors, and agents from whom information is sought shall provide to the examiners appointed under subsection (A) timely, convenient, and free access at all reasonable hours at his or its offices to all books, records, accounts, papers, documents, and all computer or other recordings relating to the property, assets, business, and affairs of the person or insurer being examined. If the director or his designee considers it necessary to the conduct of the examination, he may require that the person or insurer or his or its agents or affiliated or subsidiary corporations or partnerships furnish the original books and records. The officers, directors, employees, and agents of the insurer or person shall facilitate the examination and aid in the examination so far as it is in their power to do so. The refusal of a person or an insurer by his or its officers, directors, employees, or agents to submit to examination or to comply with a reasonable written request of the examiners is grounds for suspension or revocation of the person's or insurer's certificate of authority to engage in the business of insurance in this State. The director or his designee may make the suspension or revocation and the reasons for it public. Proceedings for revocation must be conducted pursuant to Section 38-5-140.
(C) The director or his examiners may issue subpoenas, administer oaths, and examine under oath a person as to matters pertinent to the examination. Upon the failure or refusal of a person to obey a subpoena, the director or his designee may petition a court of competent jurisdiction, and upon proper showing the court may enter an order compelling the witness to appear and testify or produce documentary evidence. Failure to obey the court order is punishable as contempt of court.
(D) When making an examination under Section 38-13-10, the director or his designee may retain attorneys, appraisers, independent actuaries, independent certified public accountants, or other professionals and specialists as examiners. The cost of the retainment must be borne by the insurer which is the subject of the examination.
(E) Nothing contained in Section 38-13-10 limits the authority of the director or his designee to:
(1) terminate or suspend an examination to pursue other legal or regulatory action pursuant to the insurance laws of this State. Findings of fact and conclusions made pursuant to an examination are prima facie evidence in a legal or regulatory action;
(2) use and, if appropriate, make public a final or preliminary examination report, examiner or insurer work papers or other documents, or other information discovered or developed during the course of an examination in the furtherance of a legal or regulatory action which the director or his designee, in his sole discretion, considers appropriate.
Section 38-13-30. (A) Examination reports must be comprised of only facts appearing upon the books, records, or other documents of the insurer, its agents, or other persons examined or as ascertained from the testimony of its officers or agents or other persons examined concerning its affairs and the conclusions and recommendations the examiners find reasonably warranted from the facts.
(B) No later than sixty days following completion of the examination, the examiner in charge shall file with the department a verified written report of examination under oath. Upon receipt of the verified report, the department shall transmit the report to the insurer examined with a notice which affords the insurer a reasonable opportunity of not more than thirty days to make a written submission or rebuttal with respect to matters contained in the examination report.
(C) After the expiration of the thirty-day period allowed for the receipt of written submissions or rebuttals, the director or his designee shall consider and review the report fully with written submissions or rebuttals and relevant portions of the examiner's work papers and enter an order:
(1) adopting the examination report as filed or with modification or corrections. If the examination report reveals that the insurer is operating in violation of law, regulation, or prior order of the director or his designee, he may order the insurer to take action the director or his designee considers necessary and appropriate to cure the violation;
(2) rejecting the examination report with directions to the examiners to reopen the examination to obtain additional data, documentation, or information and refiling pursuant to subsection (A); or
(3) calling for an investigatory hearing with no less than twenty days' notice to the insurer to obtain additional documentation, data, information, and testimony.
(D) (1) Orders entered pursuant to subsection (C)(1) must be accompanied by findings and conclusions resulting from the director's or his designee's consideration and review of the examination report, relevant examiner work papers, and written submissions or rebuttals. The order must be considered a final administrative decision and may be appealed to the Administrative Law Judge Division as provided by law. The order must be served upon the insurer by certified mail, with a copy of the adopted examination report. Within thirty days of the issuance of the adopted report, the insurer shall file affidavits executed by each of its directors stating under oath that they have received a copy of the adopted report and related orders.
(2) A hearing conducted under subsection (C)(3) by the director or his authorized representative must be conducted as a nonadversarial, confidential investigatory proceeding as necessary for the resolution of inconsistencies, discrepancies, or disputed issues apparent upon the face of the filed examination report or raised by or as a result of the director's or his designee's review of relevant work papers or by the written submission or rebuttal of the insurer. Within twenty days of the conclusion of the hearing, the director or his designee shall enter an order pursuant to subsection (C)(1).
(a) The director may not appoint an examiner as an authorized representative to conduct the hearing. The hearing shall proceed expeditiously with discovery by the insurer limited to the examiner's work papers which tend to substantiate assertions set forth in a written submission or rebuttal. The director or his representative may issue subpoenas for the attendance of witnesses or the production of documents considered relevant to the investigation whether under the control of the department, the insurer, or other persons. The documents produced must be included in the record, and testimony taken by the director or his representative must be under oath and preserved for the record. Nothing contained in this section requires the department to disclose information or records which indicate or show the existence or content of an investigation or activity of a criminal justice agency.
(b) The hearing shall proceed with the director or his representative posing questions to the person subpoenaed. After the questions the insurer and the department may present testimony relevant to the investigation. Cross examination may be conducted only by the director or his representative. The insurer and the department may make closing statements and be represented by counsel of their choice.
(E) (1) Upon completion of the examination report under subsection (C)(1), the director or his designee shall hold the content of the examination report as private and confidential information for the thirty-day period provided for written submissions or rebuttals. Thirty days after the examination report has been submitted to it if the insurer examined has neither notified the director or his designee of its acceptance and approval of the report nor requested to be heard on it, the report must be filed as a public document and is open to public inspection, as long as no court of competent jurisdiction has stayed its publication.
(2) This section does not prohibit the director or his designee from disclosing the content of an examination report, preliminary examination report, or results or related matters to the insurance department of this or another state or country, or law enforcement officials of this or another state or agency of the federal government so long as the agency or office receiving the reports, results, or related matters agrees in writing to hold them confidential and in a manner consistent with Sections 38-13-10 through 38-13-60.
(3) If the director or his designee determines that regulatory action is appropriate as a result of an examination, he may initiate proceedings or actions provided by law.
(F) All work papers, recorded information, documents, and their copies produced by, obtained by, or disclosed to the director, his designee, or other persons in the course of an examination made under this chapter must be given confidential treatment, are not subject to subpoena, and must not be made public by the director, or other persons, except to the extent provided in subsection (E). Access also may be granted to the National Association of Insurance Commissioners. The parties shall agree in writing before receiving the information to provide to it the same confidential treatment as required by this section, unless the prior written consent of the insurer to which it pertains has been obtained or unless ordered by a court of competent jurisdiction. The information may be provided to the consumer advocate as provided in Section 37-6-605 pursuant to an appropriate proprietary agreement to ensure confidentiality.
Section 38-13-40. (A) No examiner may be appointed by the director if the examiner, directly or indirectly, has a conflict of interest or is affiliated with the management of or owns a pecuniary interest in a person subject to examination under Section 38-13-10. This section does not preclude automatically an examiner from being:
(1) a policyholder or claimant under an insurance policy;
(2) a grantor of a mortgage or similar instrument on the examiner's residence to a regulated entity if done under customary terms and in the ordinary course of business;
(3) an investment owner in shares of regulated diversified investment companies; or
(4) a settlor or beneficiary or a `blind trust' into which otherwise impermissible holdings have been placed.
(B) Notwithstanding the requirements of this section, the director may retain on an individual basis qualified actuaries, certified public accountants, or other similar individuals who are practicing their professions independently, even though the persons may be employed or retained similarly by persons subject to examination under Section 38-13-10.
Section 38-13-50. The insurer shall pay the charges incurred in the examination, including the expenses of the director or his designee and the expenses and compensation of his examiners and assistants. The director or his designee promptly shall institute a civil action to recover the expenses of examination against an insurer which refuses or fails to pay.
Section 38-13-60. (A) No cause of action may arise nor may liability be imposed against:
(1) the director, the director's authorized representatives or his designees, or an examiner appointed by the director for statements made or conduct performed in good faith while carrying out Sections 38-13-10 through 38-13-40;
(2) a person for communicating or delivering information or data to the director or the director's authorized representative or examiner pursuant to an examination made under Sections 38-13-10 through 38-13-40 if the communication or delivery was performed in good faith and without fraudulent intent or the intent to deceive.
(B) This section does not abrogate or modify common law or statutory privilege or immunity enjoyed by a person identified in subsection (A).
(C) A person identified in subsection (A) may receive attorney's fees and costs if he is the prevailing party in a civil cause of action for libel, slander, or another relevant tort arising out of his activities in carrying out Sections 38-13-10 through 38-13-40 and the party bringing the action was not justified substantially in doing so. For purposes of this section a proceeding is `substantially justified' if it had a reasonable basis in law or fact at the time that it was initiated.
Section 38-13-70. Upon his own motion or upon written complaint filed by a citizen of this State that an insurer has violated this title, the director or his designee shall investigate the matter and, if necessary, examine under oath the president and other officers or agents of the insurer and all books, records, and papers of the insurer. If the director or his designee finds upon substantial evidence that a complaint against an insurer is justified, the insurer, in addition to the penalties imposed for violation of this title, is liable for the expenses of the investigation, and the director or his designee shall promptly present the insurer with a statement of the expenses. If the insurer refuses or neglects to pay, the director or his designee is authorized to revoke its license and to bring civil action for the collection of the expenses.
Section 38-13-80. (A) Every insurer annually shall file with the department by March first, in the form and detail the director or his designee prescribes, a statement showing the business standing and financial condition of the insurer on December thirty-first of the preceding year, except that upon timely written request by the chief managing agent or officer setting forth reasons why the statement cannot be filed within the time provided, the director or his designee may grant in writing an extension of filing time for not more than thirty days. This statement must conform substantially to the form of statement adopted by the National Association of Insurance Commissioners. Unless the director or his designee provides otherwise, the annual statement is to be prepared in accordance with the annual statement instructions and the Accounting Practices and Procedures Manual adopted by the National Association of Insurance Commissioners. The annual statement must be verified by at least two of its principal officers, at least one of whom prepared or supervised the preparation of the annual statement. The director or his designee shall furnish each domestic insurer two blanks for its annual statement.
(B) The director or his designee may require every insurer to file quarterly reports and additional information considered necessary to enable the director or his designee to carry out his duties under this chapter. The reports and information must be furnished in the time and manner prescribed by the director or his designee.
Section 38-13-85. (a) Every insurer who is authorized to write insurance in this State shall file annually with the National Association of Insurance Commissioners by March first a copy of its annual statement convention blank along with any additional filings prescribed by the director or his designee for the preceding year. The information filed with the National Association of Insurance Commissioners must be in the same format and scope as that required by the director or his designee and must include the signed jurat page and the actuarial certification. Any amendments and addenda to the annual statement filing subsequently filed with the director or his designee also must be filed with the National Association of Insurance Commissioners. Foreign insurers domiciled in a state which has a law substantially similar to this subsection are considered in compliance with this subsection.
(b) In the absence of actual malice, members of the National Association of Insurance Commissioners, their authorized committees, subcommittees, and task forces, their delegates, National Association of Insurance Commissioners' employees, and all others charged with the responsibility of collecting, reviewing, analyzing, and disseminating the information developed from the filing of the annual statement convention blanks are acting as agents of the director or his designee under the authority of this section and are not subject to civil liability for libel, slander, or any other cause of action by virtue of their collection, review, and analysis or dissemination of the data and information collected from the filings required by this subsection.
(c) All financial analysis ratios and examination synopses concerning insurers submitted to the department by the National Association of Insurance Commissioners' Insurance Regulatory Information System are confidential and may not be disclosed by the department.
Section 38-13-90. No insurer may publish a statement of its assets and liabilities unless it shows both its assets and liabilities with equal conspicuousness. The statement shall reflect the assets and liabilities as were shown on the last annual statement or subsequent report of examination accepted by the director or his designee unless the director or his designee has given prior written approval to the publishing of a statement as of another date. Any publication purporting to show the capital of the insurer shall exhibit only the amount of capital actually paid in. An insurer or agent violating this section is subject to the penalties provided in Section 38-2-10.
Section 38-13-100. In any determination of the financial condition of an insurer, capital stock and liabilities to be charged against its assets shall include:
(1) The amount of its capital stock outstanding, if any;
(2) The amount, estimated consistent with provisions of the law and rulings of the director or his designee, necessary to pay all its unpaid losses and claims incurred on or prior to the date of statement, whether reported or unreported, together with the expenses of adjustment or settlement;
(3) With reference to life and accident and health insurance and annuity contracts:
(a) the amount of reserves on life insurance policies and annuity contracts in force, valued according to the tables of mortality, rates of interest, and methods adopted pursuant to Section 38-9-180 which are applicable,
(b) reserves for disability benefits, for both active and disabled lives,
(c) reserves for accidental death benefits, and
(d) any additional reserves which may be reasonably required by the director or his designee;
(4) With reference to insurance other than specified in the law and rulings of the director or his designee, the amount of reserves equal to the unearned portions of the gross premiums charged on policies in force, computed in accordance with the law and rulings of the director or his designee; and
(5) Taxes, expenses, and other obligations due or accrued at the date of the statement.
Section 38-13-110. Contingent debts or liabilities of domestic insurers must be set forth in financial statements in the following manner:
(1) In the event a contingent liability or surplus certificate liability is in the form of certain borrowings provided for under Section 38-19-610 and the borrowings are made by a domestic mutual insurer insuring properties only, then the obligation of the corporation or association must be shown as a footnote on any published financial statement of the corporation or association;
(2) In the event a contingent liability or surplus certificate liability of the corporation is in connection with a domestic mutual assessment association or other form of domestic mutual insurer having issued and in force policies containing an assessment provision for either life insurance or property insurance, then the liability must be set forth as a footnote on any published financial statement of the corporation or association;
(3) In the event that a domestic mutual insurer has outstanding or is issuing a contract that does not contain an assessment provision, then the statement of assets and liabilities shall show as a part of the liabilities the face amount of the liability, with a footnote explaining that payment of the liability must be made out of the surplus earnings of the insurer and, in the event of dissolution of the corporation or association, is a junior liability to the claims of the policyholders but a senior liability to the distribution of any remaining assets to policyholders; and
(4) In the event there is a contingent liability or a surplus certificate liability outstanding in connection with any domestic capital stock insurance corporation, the full face amount of the liability must be separately stated as a part of the surplus of the insurer and is considered to be a junior liability to policyholders' reserves and claimants' liabilities but is considered a senior liability, either in the event of dissolution or for statement purposes, to that which otherwise would be a liability to the stockholders.
Section 38-13-120. All companies doing any kind of insurance business in this State shall make and keep a full and correct record of the business done by them, showing the number, date, term, amount insured, premiums, and the person to whom issued of every policy or certificate of renewal. This information must be furnished to the director or his designee on demand, and the original books or record must be open to the inspection of the director or his designee on demand. These records must be kept for a minimum of five years.
Section 38-13-130. Every insurer doing business in this State shall maintain a record of losses paid under its policies and notices as provided in its policies which may normally result in claim or loss. The records must be maintained until the next regular examination by an insurance department or for a period of five years from the date of payment of the loss or receipt of the notice.
Section 38-13-140. Any person having in his possession or control any books, accounts, or papers of any company licensed under this title shall exhibit them to the director or to any deputy, actuary, accountant, or person acting with or for the director. Any person who refuses, on demand, to exhibit any books, accounts, or papers or knowingly or wilfully makes any false statement in regard to them is guilty of a misdemeanor and, upon conviction, must be fined or imprisoned, or both, at the discretion of the court. All replies are strictly confidential except for the purposes of prosecution for any false or fraudulent statement made to the director or his designee.
Section 38-13-150. Every insurer shall file a return, on a form and at times prescribed by the director or his designee, showing all reinsurance or cessions of risk or liability contracted for or effected by it, whether by issue of policy, entry, or bordereau, general participation agreement, excess loss reinsurance, or in any manner whatsoever, upon property located in this State or covering, whether specified or otherwise, any risk or liability upon property so located. The return must be certified by the oath of its president and secretary, if a company of the United States, and, if a company of a foreign country, by the oath of its managers in the United States as to reinsurance or cessions effected through its branch office in the United States and by the oath of its president and secretary or by officers corresponding thereto, at its home office, wherever located, as to reinsurance or cessions contracted for or effected through the foreign office. The refusal of an insurer to file the required return is presumptive evidence that it is guilty of violating the provisions of Section 38-9-190.
Section 38-13-160. The director or his designee may require any authorized insurer or its officers to answer any inquiry in relation to its transactions, condition, or any connected matter necessary to the administration of the insurance laws of the State. Every corporation or person must reply in writing to the inquiry promptly and truthfully, and the reply must be verified, if required by the director or his designee, by the individual or by the officer or officers of a corporation as he designates. These replies are strictly confidential.
Section 38-13-170. If an insurer, in its annual or other statement required by law, wilfully misstates the facts, the insurer and the person signing the statement and any person aiding, abetting, or participating in the making of the statement must be severally punished by a fine of not more than two thousand dollars or imprisonment for not more than five years, or both, in the discretion of the court, and the insurer, upon conviction, forfeits its right to do business in this State.
Section 38-13-180. For purposes of Sections 38-13-190 and 38-13-200, `insurance reserve fund' or `funds' means the insurance reserve funds administered by the Division of General Services of the State Budget and Control Board to provide liability and property insurance, as authorized under Section 1-11-140, Chapter 7 of Title 10, and the regulations prescribed by the State Budget and Control Board.
Section 38-13-190. (1) At the end of each three years of operation, and at any other time considered prudent, the director or his designee shall examine the affairs of the insurance reserve funds and make findings and recommendations as provided by this section. For purposes of examination, the director or person making the examination has free access to all relevant records, books, and papers in the possession of any person or entity and may summon, administer oaths to, and examine as witnesses any persons in relation to matters relevant to the examination.
(2) The director or his designee shall examine all methods of operation of the insurance reserve funds to determine whether the funds are being administered in accordance with sound insurance practices and in the best interest of the State. Following the examination, the director or his designee shall prepare a report for submission, through the department, to the State Budget and Control Board, the Speaker of the House of Representatives, and the President of the Senate containing his findings and conclusions and any recommendations to improve the efficiency, effectiveness, and overall operation of the funds.
Section 38-13-200. Any person or entity having possession or control of any records, books, or papers relevant to an insurance reserve fund examination who fails or refuses to be examined under oath is guilty of a misdemeanor and upon conviction must be punished by a fine of not more than ten thousand dollars or imprisonment for not more than one year and is subject to suspension or revocation of any insurance licenses issued by the director or his designee.
Section 38-13-300. The director shall promulgate regulations which shall require each insurer licensed to write property or casualty insurance in the State to record and report its loss and expense experience and other data as may be necessary to determine whether rates are not excessive, inadequate, or unfairly discriminating. The director or his designee may designate one or more rate service organizations or advisory organizations to gather and compile this experience and data. In addition, each insurer licensed to write property and casualty insurance in this State, as a supplement to its annual statement, must submit a report on a form furnished by the department showing the insurer's direct writings in this State and the United States and also the information required by Sections 38-13-310 and 38-13-320.
The department may adopt data disclosure requirements developed by the National Association of Insurance Commissioners, and if adopted, shall be deemed to be in full compliance with Sections 38-13-300 through 38-13-360.
Section 38-13-310. The supplemental report required by Section 38-13-300 must include, but is not limited to, the following types of insurance written by the insurer:
(a) political subdivision liability insurance reported separately in the following categories:
(1) municipalities;
(2) school districts;
(3) other political subdivisions;
(b) public official liability insurance;
(c) dram shop liability insurance;
(d) day care center liability insurance;
(e) labor, fraternal, or religious organizations liability insurance;
(f) errors and omissions liability insurance;
(g) officers and directors liability insurance reported separately as follows:
(1) nonprofit entities;
(2) for-profit entities;
(h) products liability insurance;
(i) medical malpractice insurance;
(j) attorney malpractice insurance;
(k) architects and engineers malpractice insurance; and
(l) motor vehicle insurance reported separately for commercial and private passenger vehicles as follows:
(1) motor vehicle liability insurance first-party benefits;
(2) motor vehicle bodily injury liability insurance;
(3) motor vehicle property liability insurance;
(4) uninsured motorist insurance; and
(5) underinsured motorist insurance.
Section 38-13-320. The supplemental report must include the following data both as to this State and the United States for the previous year ending on December thirty-first:
(a) direct premiums written,
(b) direct premiums earned,
(c) net investment income, including net realized capital gains and losses, using appropriate estimates where necessary,
(d) incurred claims, developed as the sum of the following (the report shall include data for each of the following categories used to develop the sum of incurred claims):
(1) dollar amount of claims closed with payment, plus
(2) dollar amount of payments on claims still open, plus
(3) reserves for reported claims at the end of the current year, minus
(4) reserves for reported claims at the end of the previous year, plus
(5) reserves for incurred but not reported claims at the end of the current year, minus
(6) reserves for incurred but not reported claims at the end of the previous year, plus
(7) loss adjustment expenses for claims closed, plus
(8) reserves for loss adjustment expense at the end of the current year, minus
(e) actual incurred expenses allocated separately to loss adjustment, commissions, other acquisition costs, advertising, general office expenses, taxes, licenses and fees, and all other expenses;
(f) net underwriting gain or loss;
(g) net operation gain or loss, including net investment income;
(h) the number and dollar amount of claims closed with payment, by year incurred and the amount reserved for them;
(i) the number of claims closed without payment and the dollar amount reserved for those claims;
(j) federal income tax recoverable; and
(k) any other information requested by the director or his designee.
Section 38-13-330. For the first year only in which the insurer is required to file this report, the data required by items (a) through (g) of Section 38-13-320 shall include the previous calendar year and each of the preceding two calendar years.
Section 38-13-340. It is the duty of the department to annually compile and review all such reports submitted by insurers pursuant to this article to determine the appropriateness of premium rates for property and casualty insurance in this State. The findings and filings of the department must be published, provided to the General Assembly, and made available to any interested insured or citizen. If the director or his designee finds at any time that any rate is excessive, inadequate, or unfairly discriminating, he shall issue an order withdrawing its approval. The order shall specify reasons for withdrawal of approval and must be furnished to each affected insurer and rating organization and is effective in not less than sixty days from its issuance unless an affected insurer meets the burden of showing that the rate is in fact fair and appropriate.
Section 38-13-350. Each insurance company shall file all of the information required under Sections 38-13-300 through 38-13-360 with the department as a prerequisite to obtaining permission to write coverage, to continue to do business, or to file for rate increases.
Section 38-13-360. Each insurer who fails to comply with the terms of Sections 38-13-300 through 38-13-350 shall pay a civil penalty of a fine of twenty thousand dollars and thereafter a fine of one thousand dollars daily until the named sections of the article are complied with.
Section 38-13-370. First reports required under Sections 38-13-300 through 38-13-360 of this chapter are to be filed on July 1, 1988, and on July first of each following year."
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SECTION 538. Section 38-15-10 of the 1976 Code is amended to read:
"Section 38-15-10. No surety insurer authorized to transact business in this State may execute a fidelity or surety bond for an officer or employee of this State or of a county, municipality, or other subdivision of this State or for an officer or employee of a bank, trust company, or other fiduciary corporation organized under the laws of this State except upon the assumption of risk and upon the forms prescribed by law or approved by the director or his designee and the Attorney General. The insurer also shall procure special authority from the director or his designee and the Attorney General for the writing of the fidelity or surety bonds."
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SECTION 539. Section 38-15-20 of the 1976 Code is amended to read:
"Section 38-15-20. The director or his designee and the Attorney General shall remove from the list of surety insurers whose bonds are acceptable under Section 38-15-10 the names of insurers who in their judgment fail or refuse to carry out promptly their obligations in good faith."
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SECTION 540. Section 38-15-30 of the 1976 Code is amended to read:
"Section 38-15-30. Insurers doing business in this State who offer or undertake to become surety upon any bond or other surety contract must in addition to any other deposit required by the laws of this State deposit with the director bonds of the United States or of any state of the United States in the market value of one hundred thousand dollars which are receipted for by the director or his designee and held by him. The securities must be held to pay any final judgment entered against the insurer in a court of competent jurisdiction in this State requiring it to pay any loss or liability arising during the term of the bond or while the securities are held. Any judgment obtained is a lien upon the securities. When the insurer ceases to do business in this State, has settled all claims against it, and has been released from all bonds upon which it has been taken as surety, the securities deposited are delivered to the proper party on presentation of the receipt of the director or his designee for the securities. While the securities are deposited with the director, the owner is entitled to collect the interest on them. The faith of the State is pledged for the return of the deposited securities to the person entitled to receive them.
An insurer which has complied with the provisions required of qualified insurers in Section 38-9-100 is relieved of making the deposit required by this section and, subject to the provisions of Section 38-7-90, is entitled to the return of the deposit filed or deposited by it under this section.
A domestic insurer making a voluntary deposit provided by Section 38-9-110 is relieved of making this deposit if the insurer meets the definition of a qualified insurer as defined in Section 38-9-100 and if the voluntary deposit meets the requirements of that section."
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SECTION 541. Section 38-15-50 of the 1976 Code is amended to read:
"Section 38-15-50. In lieu of depositing bonds with a market value of one hundred thousand dollars, an insurer may satisfy Section 38-15-30 by depositing one hundred thousand dollars in cash in the name of the director with the trust department of a national or state bank of this State approved by the director or his designee. The director or his designee shall give the insurer a receipt for the deposit. When the insurer ceases to do business in this State, has settled all claims against it, and has been released from all the bonds upon which it has been taken as surety, the cash deposit must be delivered to the proper party upon presentation of the receipt of the director or his designee. While the cash is deposited, its owner is entitled to collect the interest. The cash deposit is liable to the same extent as securities deposited with the director and subject to like procedure in case of default or insolvency."
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SECTION 542. Section 38-17-30 of the 1976 Code is amended to read:
"Section 38-17-30. The subscribers shall, through their attorney, file with the department a declaration verified by the oath of the attorney setting forth:
(1) The name of the office at which the subscribers propose to exchange the indemnity contracts. This name may not be so similar to any name previously adopted by a similar organization or by any insurance corporation or association that in the opinion of the director or his designee is calculated to result in confusion or deception.
(2) The kind of insurance to be effected or exchanged.
(3) A copy of the form of policy contract or agreement under or by which the insurance is to be effected or exchanged.
(4) A copy of the form of power of attorney or other authority of the attorney under which the insurance is to be effected or exchanged.
(5) The location of the office or offices from which the contracts or agreements are to be issued.
(6) That applications have been made for indemnity upon at least one hundred separate risks aggregating not less than one and one-half million dollars represented by executed contracts or bona fide applications to become concurrently effective. In the case of automobile insurance, applications must have been made for indemnity upon at least one thousand motor vehicles or for insurance aggregating not less than one and one-half million dollars represented by executed contracts or bona fide applications to become concurrently effective on any or all classes of automobile insurance effected by the subscribers through the attorney.
(7) That there are assets conforming to the requirements of Section 38-17-100 in the possession of the attorney and available for the payment of losses."
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SECTION 543. Section 38-17-50 of the 1976 Code is amended to read:
"Section 38-17-50. The director or his designee shall require every reciprocal exchange to provide security deposits pursuant to Sections 38-9-80 to 38-9-140 as required for other insurers doing business in this State."
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SECTION 544. Section 38-17-60 of the 1976 Code is amended to read:
"Section 38-17-60. When filing the declaration provided for in Section 38-17-30, the attorney shall also file with the department a written instrument executed by him for the subscribers stipulating that upon the issuance of a certificate of authority provided for in Section 38-17-70 service of process may be had upon the director in all suits in this State arising out of the policies, contracts, or agreements and that this service is valid and binding upon all subscribers exchanging at any time reciprocal or interinsurance contracts through the attorney."
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SECTION 545. Section 38-17-70 of the 1976 Code is amended to read:
"Section 38-17-70. Each attorney by or through whom are issued any policies of or contracts for indemnity referred to in this chapter shall annually procure from the director or his designee a certificate of authority, stating that all of the requirements of this chapter have been complied with and, upon compliance and the payment of the fees required by this chapter, the director or his designee shall issue the certificate of authority. The director or his designee may revoke or suspend the certificate of authority upon breach of any condition imposed by this chapter after reasonable written notice has been given to the attorney so that he may appear and show cause why action should not be taken. Any attorney who may have procured a certificate of authority under this section may renew it annually."
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SECTION 546. Section 38-17-90 of the 1976 Code is amended to read:
"Section 38-17-90. The attorney shall file a sworn statement with the department showing the maximum amount of indemnity upon any single fire insurance risk. The attorney shall also file, whenever required, a sworn statement with the department that he has examined the commercial rating of the subscribers as shown by the reference book of a commercial agency having at least one hundred thousand subscribers and that from this examination or other information in his possession it appears that no subscriber has assumed more than ten percent of its net worth on any single fire insurance risk."
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SECTION 547. Section 38-17-120 of the 1976 Code is amended to read:
"Section 38-17-120. When funds other than those which have accrued from premiums or deposits of subscribers are supplied to make up a deficiency as provided in Section 38-17-100, they must be deposited and held for the benefit of subscribers under any terms and conditions the director or his designee may require as long as a deficiency exists and thereafter returned to the depositors."
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SECTION 548. Section 38-17-140 of the 1976 Code is amended to read:
"Section 38-17-140. The business affairs and assets of reciprocal or interinsurance exchanges, as shown at the office of its attorney, are subject to examination by the director or his designee as often as he sees fit. The cost of the examination must be paid by the exchange examined."
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SECTION 549. Section 38-17-150 of the 1976 Code is amended to read:
"Section 38-17-150. Each attorney shall annually make and file by March first with the department a sworn statement, upon a form to be prescribed and furnished by the director or his designee, showing that the financial condition of affairs at the office where the reciprocal or interinsurance contracts are issued is in accordance with the standard of solvency provided for in this chapter and stating:
(1) the amount of all premiums or deposits collected from subscribers in this State during the previous calendar year;
(2) the amounts actually paid subscribers on losses;
(3) the total amounts returned to subscribers as savings and the amounts retained for expenses;
(4) the amount of insurance reinsured in other insurers licensed in this State, naming them and the amount of premiums paid;
(5) the amount of insurance reinsured in insurers not licensed in this State, naming them and the amount of premiums paid; and
(6) the amount of reinsurance accepted from admitted companies and the premiums received for that reinsurance on risks located in this State, with the names of the insurers so reinsured.
However, the attorney may not be required to furnish the names and addresses of any subscribers."
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SECTION 550. Section 38-17-170 of the 1976 Code is amended to read:
"Section 38-17-170. Any attorney who exchanges any contract for indemnity specified in this chapter or directly or indirectly solicits or negotiates any applications for this contract without first complying with this chapter is guilty of a misdemeanor. The director or his designee, in his discretion and on terms he may prescribe, may issue a permit for organization purposes which must continue in force or be canceled at his pleasure."
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SECTION 551. Section 38-19-40 of the 1976 Code is amended to read:
"Section 38-19-40. Notice of the time and place of the annual meeting of members of a domestic mutual insurer must be given by imprinting the notice plainly on the policies issued by the insurer. Any change of the time or place of the annual meeting may be made only at an annual meeting of members. Notice of a change must be given:
(1) by imprinting the new time or place on all policies which are issued following the annual meeting at which a change was approved; and
(2) by including a written notice of the change in a premium due notice to each member subsequent to the annual meeting at which the change was approved and before the first annual meeting affected by the change; or
(3) by any other method ordered or approved by the director or his designee."
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SECTION 552. Section 38-19-50 of the 1976 Code is amended to read:
"Section 38-19-50. (A) A member of a domestic mutual insurer may vote in person or by proxy on any matter coming before a corporate meeting of members. An appointment of proxy is effective when received by the secretary or other officer or agent authorized to tabulate votes. Unless a time of expiration is otherwise specified, an appointment is valid for eleven months.
(B) No member's vote upon any proposal (1) to divest the insurer of its business and assets, or the major part of it, or (2) to change the corporate structure of the insurer as provided in Article 9 of this chapter may be registered or taken except in person or by a proxy newly executed and specific as to the matter to be voted upon.
(C) No proxy may be utilized by a domestic mutual insurer subject to the provisions of this chapter unless:
(1) it is printed in ballot form;
(2) it includes in the case of elections for members of boards of directors adequate provisions for the voting by write-in for persons other than those nominees appearing on the proxy for each office;
(3) it includes adequate notice that votes for directors where more than one office of director is subject to election may be cast cumulatively;
(4) it includes in the case of issues or matters for consideration adequate provisions for affirmative or negative votes individually on each issue or matter;
(5) the director or his designee has given prior approval to it."
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SECTION 553. Section 38-19-440 of the 1976 Code is amended to read:
"Section 38-19-440. If at any time the surplus of a domestic mutual insurer is less than the amount required by this title and the deficiency is not cured from other sources, its directors may with the approval of the director or his designee make an assessment on its members who, at any time within the twelve months immediately preceding the date the assessment was authorized by the directors, held policies providing for contingent liability. The director or his designee may refuse to approve the assessment if in his judgment refusal will best promote the interests of the insurer's members and creditors and of the insuring public."
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SECTION 554. Section 38-19-470 of the 1976 Code is amended to read:
"Section 38-19-470. A domestic mutual insurer, after it has established a surplus not less than the minimum capital and surplus required of a stock insurer to transact like kinds of insurance and for so long as it maintains this surplus, may extinguish the contingent liability of its members to assessment and omit provisions imposing contingent liability in all policies currently issued. Any deposit made with the director or his designee as a prerequisite to the insurer's certificate of authority may be included as part of the surplus referred to in this section. When the surplus has been established and the director or his designee has so ascertained, he shall issue to the insurer, at its request, his certificate authorizing the extinguishment of the contingent liability of its members and the issuance of policies free from contingent liability."
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SECTION 555. Section 38-19-480 of the 1976 Code is amended to read:
"Section 38-19-480. The director or his designee may not authorize a domestic mutual insurer to extinguish the contingent liability of any of its members or in any of its policies to be issued unless it qualifies to and does extinguish the liability of all its members and in all policies for all kinds of insurance transacted by it."
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SECTION 556. Section 38-19-490 of the 1976 Code is amended to read:
"Section 38-19-490. The director or his designee shall revoke the authority of a domestic mutual insurer to extinguish the contingent liability of its members if:
(1) at any time the insurer's surplus is less than the minimum capital and surplus required of a stock insurer to transact similar kinds of business;or
(2) the insurer, by resolution of its directors approved by its members, requests that the authority be revoked.
Upon revocation of this authority for any cause the insurer may not thereafter issue any policies without contingent liability nor renew any policies then in force without written endorsement thereon providing for contingent liability."
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SECTION 557. Section 38-19-610 of the 1976 Code is amended to read:
"Section 38-19-610. A domestic mutual insurer, with the advance approval of the director or his designee and without the pledge of any of its assets, may borrow money to defray the expenses of its organization or for any purpose required by its business upon an agreement that the money and the interest as agreed upon must be repaid only out of the insurer's earned surplus in excess of its required minimum surplus. If the money is to be borrowed upon multiple agreements, the agreements must be serially numbered. No loan agreement or series of agreements may have or be given any preferential rights over any other such loan agreement or series. No commission or promotional expense may be paid to a director, officer, or employee of the insurer on account of this loan. The director's or his designee's approval of the loan, if granted, shall specify the amount to be borrowed, the purpose for which the money is to be used, the terms and forms of the loan agreement, the date by which the loan must be completed, and other related matters the director or his designee considers proper. This article does not apply to loans obtained by the insurer in the ordinary course of business from banks and other financial institutions, nor to loans secured by pledge or mortgage of assets."
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SECTION 558. Section 38-19-640 of the 1976 Code is amended to read:
"Section 38-19-640. If there is more than one such loan or if any such loan is represented by multiple agreements, the loan agreement shall provide, in addition to any other time of repayment specified in it, that any part of the loan may be repaid at any time by selection by lot, under supervision of the director or his designee, of those loan agreements, out of all similar agreements then outstanding, to be then repaid in part or in whole."
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SECTION 559. Section 38-19-650 of the 1976 Code is amended to read:
"Section 38-19-650. No repayment of the loan may be made unless approved by the director or his designee. The insurer shall notify the director or his designee in writing not less than sixty days in advance of its intention to repay the loan or any part of it. The director or his designee shall immediately ascertain whether the insurer's financial condition is such that the repayment can properly be made."
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SECTION 560. Section 38-19-825 of the 1976 Code is amended to read:
"Section 38-19-825. (A) A mutual insurer may engage in any of the transactions specified in Section 38-19-815 under such reasonable plan and procedure as approved by the director or his designee after a public hearing on the matter. Notice must be given to those persons who were members, directors or trustees, officers, and employees of the mutual insurer on the date the plan was filed with the department. Notice may be given to any other person at the discretion of the director or his designee. All of these persons have the right to appear and be heard at the hearing.
(B) The director or his designee may not approve any plan or procedure unless:
(1) its terms and conditions are fair and equitable;
(2) it is approved by a vote of not less than two-thirds of the insurer's members voting on it in person, or by proxy, at a meeting of members called for the purpose pursuant to reasonable notice and procedure as approved by the director or his designee. Only persons who are members on the date the plan was filed with the department are entitled to vote;
(3) the equity of each member in the insurer is determinable under a fair and reasonable formula approved by the director or his designee, which must be based upon the insurer's entire surplus as shown in the insurer's financial statement filed with the department, including all voluntary reserves but excluding contingently repayable funds and outstanding guaranty capital shares at the redemption value of them, and without taking into account the value of nonadmitted assets or of insurance business in force;
(4) the members entitled to participate in the distribution of assets, whether cash or property or a combination of them, shall include not less than all members of the insurer as of the date the plan was submitted to the department and each person who had been a member of the insurer within three years prior to that date;
(5) the director or his designee finds that the insurer's management has not, through reduction and volume of new business written, or cancellation, or through any other means, sought to reduce, limit, or affect the number or identity of the insurer's members to be entitled to participate in the plan, or to secure for the individuals comprising management any unfair advantage through the plan.
(C) If the plan provides for a conversion from a mutual insurer to a stock insurer, the director or his designee may not approve the plan or procedure unless:
(1) the plan gives to each member of the insurer, as specified in subsection (B)(4), a preemptive right to acquire his proportionate part of all of a proposed capital stock of the insurer, or all of the stock of any corporation affiliated with the insurer, within a designated, reasonable period, as the part is determinable under the plan of conversion, and to apply upon the purchase of it the amount of his equity in the insurer as determined under subsection (B)(3). The plan must provide for an equitable distribution of fractional interests. The plan may provide, subject to the approval of the director or his designee, that the preemptive right will not extend to any member who resides in a jurisdiction in which the issuance of stock is impossible, or to any member if the extension would involve unreasonable delay or require the insurer to bear unreasonable costs, provided that any member shall receive one hundred percent of his equity share in the insurer in the form of a cash payment;
(2) shares are to be offered to members at a price not greater than that offered after that time under the plan to others except as provided in subsection (D);
(3) the plan provides for payment to each member of his entire equity share in the insurer, with that payment to be made in cash or to be applied for or upon the purchase of stock to which the member is preemptively entitled, or both, provided that with respect to each member who is not given the option of receiving his entire equity share in cash, the plan must provide that the member has the option to receive a reasonable portion of his equity share, as provided in the plan, but not in excess of fifty percent of his entire equity, in the form of a cash payment, which payment together with the amount applied to the purchase of stock constitutes full payment and discharge of the member's equity or property interest in the mutual insurer. The director or his designee may permit an insurer to forego the option of making a cash payment to members if he determines that it would be reasonable not to provide for the cash election, after taking into account all the facts and circumstances, including whether there is expected to be an active market for the stock to be received in the conversion;
(4) the plan, when completed, provides that the insurer's surplus regarding policyholders is reasonable relating to the insurer's outstanding liabilities and adequate to meet its financial needs. In determining if the surplus as regarding policyholders is reasonable relating to the insurer's outstanding liabilities and adequate to meet its financial needs, the following factors, among others, are considered:
(a) the size of the insurer as measured by its assets, capital and surplus, reserves, premium writing, insurance in force, and other appropriate criteria;
(b) the extent to which the insurer's business is diversified among the several lines of insurance;
(c) the number and size of risks insured in each line of business;
(d) the extent of the geographical dispersion of the insurer's insured risks;
(e) the nature and extent of the insurer's reinsurance program;
(f) the quality, diversification, and liquidity of the insurer's investment portfolio;
(g) the recent past and projected future trend in the size of the insurer's investment portfolio;
(h) the surplus regarding policyholders maintained by other comparable insurers;
(i) the adequacy of the insurer's reserves; and
(j) the quality and liquidity of investments in affiliates. The director or his designee may treat any investment as a disallowed asset for purposes of determining the adequacy of surplus regarding policyholders whenever in his judgment the investment warrants it.
(D) Nothing in this section prohibits the inclusion in the conversion plan of provisions under which the individuals comprising the insurer's management and employee group are entitled to purchase for cash, at a price not lower than the price at which it had been offered to the insurer's members, shares of stock not taken by members on the preemptive offering to members, in accordance with the reasonable classification of the individuals included in the plan approved by the director or his designee. This price limitation may not extend beyond a date set forth in the plan. After the expiration of such date, the governing body of the insurer, with the approval of the director or his designee, may dispose of any stock not taken before that time to any person and for such consideration as may be necessary or desirable in its discretion.
(E) A director, officer, agent, or employee of the insurer may receive only his usual regular compensation, for aiding, promoting, or assisting in the conversion, except as set forth in the plan approved by the director or his designee. This provision does not prohibit the payment of reasonable fees and compensation to attorneys, accountants, and actuaries for services performed in the independent practice of their professions.
(F) For the purpose of determining whether a conversion plan meets the requirements of this section and any other relevant provisions of this title, the director may employ staff personnel and outside consultants. All reasonable costs related to the review of a plan of conversion, including those costs attributable to the use of staff personnel, must be borne by the insurer making the filing."
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SECTION 561. Section 38-21-10(2) of the 1976 Code is amended to read:
"(2) The term `control' (including the terms `controlling', `controlled by', and `under common control with') means the possession, direct or indirect, of the management and policies of a person, whether through the ownership of voting securities, by contract other than a commercial contract for goods or nonmanagement services, or otherwise, unless the power is the result of an official position with or corporate office held by the person. Control is presumed to exist if any person, directly or indirectly, owns, controls, holds with the power to vote, or holds proxies representing ten percent or more of the voting securities of any other person. This presumption may be rebutted by a showing made in the manner provided by Section 38-21-220 that control does not exist in fact. The director or his designee may determine, after furnishing all persons in interest notice and opportunity to be heard and making specific findings of fact to support his determination, that control exists in fact, notwithstanding the absence of a presumption to that effect."
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SECTION 562. Section 38-21-20(11) of the 1976 Code is amended to read:
"(11) Any other business activity determined by the director or his designee to be reasonably ancillary to an insurance business;"
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SECTION 563. Section 38-21-30(3) of the 1976 Code is amended to read:
"(3) With the approval of the director or his designee, invest any greater amount in common stock, preferred stock, debt obligations, or other securities of one or more subsidiaries if after such investment the insurer's surplus as regards policyholders will be reasonable in relation to the insurer's outstanding liabilities and adequate to its financial needs."
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SECTION 564. Section 38-21-50 of the 1976 Code is amended to read:
"Section 38-21-50. Whether an investment meets the applicable requirements of Section 38-21-30 is to be determined before the investment is made by calculating the applicable investment limitations as though the investment had already been made, taking into account the then outstanding principal balance on all previous investments in debt obligations, and the value of all previous investments in equity securities as of the day they were made, net of any return of capital invested, not including dividends.
If an insurer ceases to control a subsidiary, it must dispose of any investment made pursuant to Section 38-21-30 within three years from the time of the cessation of control or within such further time that the director or his designee may prescribe unless, at any time after the investment has been made, the investment has met the requirements for investment under any other section of this title and the insurer has notified the director or his designee."
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SECTION 565. Section 38-21-60 of the 1976 Code is amended to read:
"Section 38-21-60. No person other than the issuer may make a tender offer for or a request or invitation for tenders of, or enter into any agreement to exchange securities for, seek to acquire or acquire, in the open market or otherwise, any voting security of a domestic insurer if, after the consummation thereof, the person would, directly or indirectly, or by conversion or by exercise of any right to acquire, be in control of the insurer, and no person may enter into an agreement to merge with or otherwise to acquire control of a domestic insurer unless, at the time the offer, request, or invitation is made or the agreement is entered into, or prior to the acquisition of the securities if no offer or agreement is involved, the person has filed with the department a statement containing the information required by this section and the offer, request, invitation, agreement, or acquisition has been approved by the director or his designee in the manner hereinafter prescribed.
For purposes of this section, a domestic insurer includes any other person controlling a domestic insurer unless the other person as determined by the director or his designee is either directly or through its affiliates primarily engaged in business other than the business of insurance. As used in this section, `person' does not include any securities broker holding, in the usual and customary brokers' function, less than twenty percent of the voting securities of an insurance company or of any person which controls an insurance company."
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SECTION 566. Section 38-21-70 of the 1976 Code is amended to read:
"Section 38-21-70. The statement to be filed with the department, as prescribed in Section 38-21-60, must be made under oath or affirmation and shall contain the following information:
(1) The name and address of each person by whom or on whose behalf the merger or other acquisition of control referred to in Section 38-21-60 is to be effected, hereinafter called `acquiring party', and
(a) If the acquiring party is an individual, his principal occupation and all offices and positions held during the past five years and any conviction of crimes other than minor traffic violations during the past ten years;
(b) If the acquiring party is not an individual, a report of the nature of its business operations during the past five years or for any lesser period as the acquiring party and any predecessors have been in existence; an informative description of the business intended to be done by the acquiring party and its subsidiaries; and a list of all individuals who are or who have been selected to become directors or executive officers of the acquiring party or who perform or will perform functions appropriate to these positions. The list shall include for each of these individuals the information required by subitem (a) of this section.
(2) The source, nature, and amount of the consideration used or to be used in effecting the merger or other acquisition of control, a description of any transaction in which funds were or are to be obtained for this purpose, and the identity of persons furnishing the consideration. Where a source of the consideration is a loan made in the lender's ordinary course of business, the identity of the lender must remain confidential, if the person filing the statement so requests.
(3) Fully audited financial information as to the earnings and financial condition for the preceding five fiscal years of each acquiring party or for any lesser period as the acquiring party and any of its predecessors have been in existence.
(4) Unaudited financial information of the earnings and financial condition of each acquiring party as of a date within ninety days prior to filing the statement.
(5) Any plans or proposals which each acquiring party may have to liquidate the insurer, to sell its assets or merge or consolidate it with any person, or to make any other material change in its business or corporate structure or management.
(6) The number of shares of any security referred to in Section 38-21-60 which each acquiring party proposes to acquire and the terms of the offer, request, invitation, agreement, or acquisition referred to in Section 38-21-60 and a statement as to the method by which the fairness of the proposal was arrived.
(7) The amount of each class of any security referred to in Section 38-21-60 which is beneficially owned or concerning which there is a right to acquire beneficial ownership by each acquiring party.
(8) A full description of any contracts, arrangements, or understandings with respect to any security referred to in Section 38-21-60 in which an acquiring party is involved, including, but not limited to, transfer of any of the securities, joint ventures, loan or option arrangements, puts or calls, guarantees of loans, guarantees against loss or guarantees of division of losses or profits, or the giving or withholding of proxies. The description shall identify the persons with whom the contracts, arrangements, or understandings have been entered into.
(9) A description of the purchase of any security referred to in Section 38-21-60 during the twelve calendar months preceding the filing of the statement, by any acquiring party, including the dates of purchase, names of the purchasers, and consideration paid or agreed to be paid.
(10) A description of any recommendations to purchase any security referred to in Section 38-21-60 made during the twelve calendar months preceding the filing of the statement by any acquiring party, or by anyone based upon interviews or at the suggestion of the acquiring party.
(11) Copies of all tender offers for, requests or invitations for tenders of, exchange offers for, and agreements to acquire or exchange any securities referred to in Section 38-21-60, if distributed, of additional soliciting material relating thereto.
(12) The terms of any agreement, contract, or understanding made with any broker-dealer as to solicitation of securities referred to in Section 38-21-60 for tender, and the amount of any fees, commissions, or other compensation to be paid the broker-dealers.
(13) Any additional information the director may by regulation prescribe as necessary or appropriate for the protection of policyholders of the insurer or in the public interest.
If the person required to file the statement referred to in Section 38-21-60 is a partnership, limited partnership, syndicate, or other group, the director or his designee may require that the information called for by this section be given with respect to each partner of the partnership or limited partnership, each member of the syndicate or group, and each person who controls the partner or member. If this partner, member, or person is a corporation or the person required to file the statement referred to in Section 38-21-60 is a corporation, the director or his designee may require that the information called for by this section be given with respect to the corporation, each officer and director of the corporation, and each person who is directly or indirectly the beneficial owner of more than ten percent of the outstanding voting securities of the corporation.
If any material change occurs in the facts set forth in the statement filed with the department and sent to the insurer pursuant to this section, an amendment setting forth the change, together with copies of all documents and other material relevant to the change, must be filed with the department and sent to the insurer within two business days after the person learns of the change."
Name changed
SECTION 567. Section 38-21-90 of the 1976 Code is amended to read:
"Section 38-21-90. (A) The director or his designee shall approve a merger or other acquisition of control in Section 38-21-60 unless, after a public hearing, he finds that:
(1) After the change of control the domestic insurer referred to in Section 38-21-60 is not able to satisfy the requirements for the issuance of a license to write the line or lines of insurance for which it is presently licensed.
(2) The effect of the merger or other acquisition of control would substantially lessen competition in insurance in this State or tend to create a monopoly. In applying the competitive standard in this item:
(a) The information requirements and standards of Section 38-21-125(C) and (D) apply.
(b) The merger or other acquisition must not be approved if the director or his designee finds that at least one of the situations in Section 38-21-125(D) exists.
(c) The director or his designee may condition the approval of the merger or other acquisition on the removal of the basis of disapproval within a specified period of time.
(3) The financial condition of the acquiring party might jeopardize the financial stability of the insurer or prejudice the interest of its policyholders.
(4) The plans or proposals which the acquiring party has to liquidate the insurer, sell its assets, or consolidate or merge it with a person or to make another material change in its business or corporate structure or management are unfair and unreasonable to policyholders of the insurer and not in the public interest.
(5) The competence, experience, and integrity of those persons who would control the operation of the insurer are such that it is not in the interest of policyholders of the insurer and of the public to permit the merger or other acquisition of control.
(6) The acquisition is likely to be hazardous or prejudicial to the insurance-buying public.
(B) The public hearing referred to in subsection (A) must be held within thirty days after the statement required by Section 38-21-60 is filed, and at least twenty days' notice must be given by the director or his designee to the person filing the statement, to the insurer, and to other persons designated by the director or his designee. The director or his designee shall make a determination within thirty days after the conclusion of the hearing. At the hearing, the person filing the statement, the insurer, a person to whom notice of hearing was sent, and other persons whose interests are affected may present evidence, examine and cross-examine witnesses, and offer oral and written arguments and are entitled to conduct discovery proceedings in the same manner allowed in the Circuit Courts of this State. Discovery proceedings must be concluded not later than three days before the public hearing.
(C) The director may retain at the acquiring person's expense attorneys, actuaries, accountants, and other experts not otherwise a part of the department's staff reasonably necessary to assist the director or his designee in reviewing the proposed acquisition of control."
Name changed
SECTION 568. Section 38-21-100 of the 1976 Code is amended to read:
"Section 38-21-100. The provisions of Sections 38-21-60 to 38-21-120 do not apply to:
(1) Any transaction which is subject to Article 9 of Chapter 19 dealing with the merger or consolidation of two or more insurers.
(2) Any offer, request, invitation, agreement, or acquisition which the director or his designee by order exempts as (a) not having been made or entered into for the purpose and not having the effect of changing or influencing the control of a domestic insurer, or (b) as otherwise not comprehended within the purposes of Sections 38-21-60 through 38-21-120."
Name changed
SECTION 569. Section 38-21-110 of the 1976 Code is amended to read:
"Section 38-21-110. The following are violations of Sections 38-21-60 to 38-21-120:
(1) The failure to file any statement, amendment, or other material required to be filed pursuant to Section 38-21-60 or 38-21-70; or
(2) The effectuation or any attempt to effectuate an acquisition or control of, or merger with, a domestic insurer unless the director or his designee has given his approval."
Name changed; reference to Administative Law Judge Division
SECTION 570. Section 38-21-120 of the 1976 Code is amended to read:
"Section 38-21-120. The courts of this State, including Administrative Law Judge Division as provided by law, are vested with jurisdiction over each person not resident, domiciled, or authorized to do business in this State who files a statement with the department under this chapter and over all actions involving the person arising out of violations of Sections 38-21-60 through 38-21-120. This person must be considered to have performed acts equivalent to and constituting an appointment by him of the director to be his true and lawful attorney upon whom all lawful process may be served in any action, suit, or proceeding arising out of violations of Sections 38-21-60 through 38-21-120. Copies of all lawful process must be served on the director and transmitted by registered or certified mail by the director or his designee to the person at his last known address."
Name changed
SECTION 571. Section 38-21-125 of the 1976 Code is amended to read:
"Section 38-21-125. (A) For purposes of this section:
(1) `Acquisition' means an agreement, arrangement, or activity the consummation of which results in a person directly or indirectly acquiring the control of another person and includes, but is not limited to, the acquisition of voting securities, the acquisition of assets, bulk reinsurance, and mergers.
(2) An `involved insurer' includes an insurer which acquires or is acquired, is affiliated with an acquirer or acquired, or is the result of a merger.
(B) (1) Except as exempted in item (2), this section applies to an acquisition in which there is a change in control of an insurer authorized to do business in this State.
(2) This section does not apply to:
(a) an acquisition subject to approval or disapproval by the director or his designee pursuant to Section 38-21-60;
(b) a purchase of securities solely for investment purposes so long as the securities are not used by voting or otherwise to cause or attempt to cause the substantial lessening of competition in an insurance market in this State. If a purchase of securities results in a presumption of control under Section 38-21-10(2), it is not solely for investment purposes unless the commissioner of the insurer's state of domicile accepts a disclaimer of control or affirmatively finds that control does not exist, and the disclaimer action or affirmative finding is communicated by the domiciliary commissioner to the director of or his designee;
(c) the acquisition of a person by another person when both persons are neither directly nor through affiliates primarily engaged in the business of insurance if preacquisition notification is filed with the department in accordance with subsection (C)(1) thirty days before the proposed effective date of the acquisition. However, preacquisition notification is not required for exclusion from this section if the acquisition would be excluded by other provisions of this subsection;
(d) the acquisition of already affiliated persons;
(e) an acquisition if, as an immediate result of the acquisition:
(i) In any market the combined market share of the involved insurers does not exceed five percent of total market.
(ii) There is not an increase in a market share, or in any market the combined market share of the involved insurers does not exceed twelve percent of the total market, and the market share does not increase by more than two percent of the total market. For the purpose of this subitem a market means direct written insurance premium in this State for a line of business as contained in the annual statement required to be filed by insurers licensed to do business in this State;
(f) an acquisition for which a preacquisition notification would be required pursuant to this section due solely to the resulting effect on the ocean marine insurance line of business;
(g) an acquisition of an insurer whose domiciliary commissioner affirmatively finds that:
(i) The insurer is in failing condition.
(ii) There is a lack of feasible alternatives to improving the condition.
(iii) The public benefits of improving the insurer's condition through the acquisition exceed the public benefits that would arise from not lessening competition.
(iv) The findings are communicated by the domiciliary commissioner to the director of or his designee.
(C) (1) An acquisition covered by subsection (B) may be subject to an order pursuant to subsection (E) unless the acquiring person files a preacquisition notification and the waiting period has expired. The acquired person may file a preacquisition notification. The director or his designee shall give confidential treatment to information submitted under subsection (C) in the same manner provided in Section 38-21-290.
(2) The preacquisition notification must be in a form and contain information prescribed by the National Association of Insurance Commissioners relating to those markets which, under subsection B(2)(e), cause the acquisition not to be exempted from the provisions of this section. The director or his designee may require additional material and information necessary to determine whether the proposed acquisition, if consummated, violates the competitive standard of subsection (D). The required information may include an opinion of an economist as to the competitive impact of the acquisition in this State accompanied by a summary of the education and experience of the person indicating ability to render an informed opinion.
(3) The required waiting period begins on the date of receipt of the department of a preacquisition notification and ends on the earlier of the thirtieth day after the date of receipt or termination of the waiting period by the Director or his designee. Before the end of the waiting period, the director or his designee on a one-time basis may require the submission of additional needed information relevant to the proposed acquisition. If he does, the waiting period ends on the earlier of the thirtieth day after receipt of the additional information by the department or termination of the waiting period by the director or his designee.
(D) (1) The director or his designee may enter an order under subsection (E) (1) with respect to an acquisition if there is substantial evidence that the effect of the acquisition may be to lessen competition substantially in a line of insurance in this State or tend to create a monopoly or if the insurer fails to file adequate information in compliance with subsection (C).
(2) In determining whether a proposed acquisition violates the competitive standard of item (1), the director or his designee shall consider the following:
(a) An acquisition covered under subsection (B) involving two or more insurers competing in the same market is prima facie evidence of a violation of the competitive standards:
(i) if the market is highly concentrated and the involved insurers possess the following shares of the market:
Insurer A Insurer B
4% 4% or more
10% 2% or more
15% 1% or more
(ii) if the market is not highly concentrated and the involved insurers possess the following shares of the market:
Insurer A Insurer B
5% 5% or more
10% 4% or more
15% 3% or more
19% 1% or more
A highly concentrated market is one of which the share of the four largest insurers is seventy-five percent or more of the market. Percentages not shown in the tables are interpolated proportionately to the percentages that are shown. If more than two insurers are involved, exceeding the total of the two columns in the table is prima facie evidence of violation of the competitive standard in item (1). For the purpose of this item, the insurer with the largest share of the market is Insurer A.
(b) It must be determined whether there is a significant trend toward increased concentration in the market. The trend exists when the aggregate market share of a grouping of the largest insurers in the market, from the two largest to the eight largest, has increased by seven percent or more of the market over time extending from a base year five to ten years before the acquisition up to the time of the acquisition. An acquisition or merger covered under subsection (B) involving two or more insurers competing in the same market is prima facie evidence of a violation of the competitive standard in item (1) if all of the following exist:
(i) There is a significant trend toward increased concentration in the market.
(ii) One of the insurers involved is one of the insurers in a grouping of the large insurers showing the requisite increase in the market share.
(iii) Another involved insurer's market is two percent or more.
(c) Even though an acquisition is not prima facie violative of the competitive standard under this item, the director or his designee may establish the requisite anticompetitive effect based upon other substantial evidence. Even though an acquisition is prima facie violative of the competitive standard under this item, a party may establish the absence of the requisite anticompetitive effect based upon other substantial evidence. Relevant factors in making a determination include, but are not limited to: market shares, volatility of the ranking of market leaders, number of competitors, concentration, trend of concentration in the industry, and ease of entry and exit into the market.
(d) For the purpose of this item:
(i) `Insurer' includes a company or group of companies under common management, ownership, or control.
(ii) `Market' means the relevant product and geographical markets. In determining the relevant product and geographical markets the director or his designee shall give due consideration to the definitions or guidelines, if any, promulgated by the National Association of Insurance Commissioners and to information, if any, submitted by parties to the acquisition. In the absence of sufficient information to the contrary, the relevant product market is assumed to be the direct written insurance premium for a line of business. The line is that used in the annual statement required to be filed by insurers doing business in this State, and the relevant geographical market is assumed to be this State.
(iii) The burden of showing prima facie evidence of a violation of the competitive standard rests upon the director or his designee.
(3) An order must not be entered under subsection (E)(1) if the acquisition will:
(a) yield substantial economies of scale or economies in resource utilization that cannot be achieved feasibly in another way, and the public benefits which would arise from the economies exceed the public benefits which would arise from not lessening competition; or
(b) substantially increase the availability of insurance, and the public benefits of the increase exceed the public benefits which would arise from not lessening competition.
(E)(1)(a) If an acquisition violates the standards of this section, the director or his designee may enter an order:
(i) requiring an involved insurer to stop doing business in this State with respect to the line or lines of insurance involved in the violation; or
(ii) denying the application of an acquired or acquiring insurer for a license to do business in this State.
(b) An order must not be entered unless all of the following exist:
(i) There is a hearing.
(ii) Notice of the hearing is issued before the end of the waiting period and not less than fifteen days before the hearing.
(iii) The hearing is concluded and the order is issued no later than sixty days after the end of the waiting period. An order must be accompanied by a written decision of the director or his designee setting forth his findings of fact and conclusions of law.
(c) An order does not become final earlier than thirty days after it is issued. Before it becomes final the involved insurer may submit a plan to remedy the anticompetitive impact of the acquisition within a reasonable time. Based upon the plan or other information, the director or his designee shall specify the conditions, if any, under the time period during which the aspects of the acquisition causing a violation of the standards of this section would be remedied and the order vacated or modified.
(d) An order does not apply if the acquisition is not consummated.
(2) A person who violates an order under item (1), while the order is in effect, after notice and hearing, and upon order of the director or his designee, is subject at his discretion to one or more of the following:
(a) monetary penalty of not more than ten thousand dollars for each day of violation;
(b) suspension or revocation of license.
(3) An insurer or other person who fails to make a filing required by this section and who fails to demonstrate a good faith effort to comply with a filing requirement is subject to a fine of not more than fifty thousand dollars.
(F) Sections 38-21-320, 38-21-330, and 38-21-350 do not apply to acquisitions under subsection (B)."
Name changed
SECTION 572. Section 38-21-130 of the 1976 Code is amended to read:
"Section 38-21-130. Every insurer authorized to do business in this State which is a member of an insurance holding company system shall register with the department, except a foreign insurer subject to registration requirements and standards adopted by statute or regulation in the jurisdiction of its domicile which are substantially similar to those contained in this chapter.
Any insurer which is subject to registration under this chapter shall register within fifteen days after it becomes subject to registration, and annually thereafter by March first of each year for the previous calendar year, unless the director or his designee for good cause shown extends the time for registration, and then within the extended time. The director or his designee may require any authorized insurer which is a member of a holding company system which is not subject to registration under this section to furnish a copy of the registration statement or other information filed by the insurance company with the insurance regulatory authority of its domiciliary jurisdiction."
Name changed
SECTION 573. Section 38-21-140 of the 1976 Code is amended to read:
"Section 38-21-140. Every insurer subject to registration shall file the registration statement on a form prescribed by the director or his designee which must contain the following current information:
(1) capital structure, general financial condition, ownership, and management of the insurer and a person controlling the insurer;
(2) identity and relationship of every member of the insurance holding company system;
(3) the following agreements in force and transactions currently outstanding or which have occurred during the last calendar year between the insurer and its affiliates:
(a) loans, other investments, or purchases, sales, or exchanges of securities of the affiliates by the insurer or of the insurer by its affiliates;
(b) purchases, sales, or exchanges of assets;
(c) transactions not in the ordinary course of business;
(d) guarantees or undertakings for the benefit of an affiliate which result in an actual contingent exposure of the insurer's assets to liability, other than insurance contracts entered into in the ordinary course of the insurer's business;
(e) management agreements, service contracts, and cost-sharing arrangements;
(f) reinsurance agreements;
(g) dividends and other distributions to shareholders;
(h) consolidated tax allocation agreements.
(4) pledge of the insurer's stock, including stock of a subsidiary or controlling affiliate, for a loan made to a member of the insurance holding company system;
(5) other matters concerning transactions between registered insurers and affiliates included in registration forms adopted or approved by the director or his designee."
Name changed
SECTION 574. Section 38-21-160 of the 1976 Code is amended to read:
"Section 38-21-160. No information need be disclosed on the registration statement filed pursuant to Section 38-21-140 if the information is not material for the purposes of this chapter. Unless the department by regulation or by order of the director or his designee provides otherwise, sales, purchases, exchanges, loans or extension of credit, or investments involving one-half of one percent or less of an insurer's admitted assets as of the previous December thirty-first are not considered material for purposes of Sections 38-21-140 through 38-21-240."
Name changed
SECTION 575. Section 38-21-170 of the 1976 Code is amended to read:
"Section 38-21-170. Subject to Section 38-21-270, each registered insurer shall report to the department all dividends and other distributions to shareholders within fifteen business days following the declaration thereof."
Name changed
SECTION 576. Section 38-21-190 of the 1976 Code is amended to read:
"Section 38-21-190. The director or his designee shall terminate the registration of an insurer that is no longer a member of an insurance holding company system."
Name changed
SECTION 577. Section 38-21-200 of the 1976 Code is amended to read:
"Section 38-21-200. The director or his designee may require or allow two or more affiliated insurers subject to registration to file a consolidated registration statement."
Name changed
SECTION 578. Section 38-21-210 of the 1976 Code is amended to read:
"Section 38-21-210. The director or his designee may allow an insurer which is authorized to do business in this State and which is part of an insurance holding company system to register on behalf of an affiliated insurer which is required to register under Section 38-21-130 and to file all information and material required to be filed under Sections 38-21-130 through 38-21-240."
Name changed
SECTION 579. Section 38-21-220 of the 1976 Code is amended to read:
"Section 38-21-220. A person may file with the department a disclaimer of affiliation with an authorized insurer or a disclaimer may be filed by an insurer or a member of an insurance holding company system. The disclaimer shall fully disclose all material relationships and bases for affiliation between the person and the insurer as well as the basis for disclaiming this affiliation. After a disclaimer has been filed, the insurer is relieved of any duty to register or report under Sections 38-21-130 through 38-21-240 which may arise out of the insurer's relationship with that person unless and until the director or his designee disallows the disclaimer. The director or his designee may disallow the disclaimer only after furnishing all parties in interest with notice and an opportunity to be heard and after making specific findings of fact to support the disallowance."
Name changed
SECTION 580. Section 38-21-240 of the 1976 Code is amended to read:
"Section 38-21-240. The provisions of Sections 38-21-130 to 38-21-240 do not apply to any insurer, information, or transaction if and to the extent that the department by regulation or the director or his designee by order exempts it from these sections."
Name changed
SECTION 581. Section 38-21-250 of the 1976 Code is amended to read:
"Section 38-21-250. (1) Transactions within a holding company system to which an insurer subject to registration is a party are subject to the following standards:
(i) The terms must be fair and reasonable.
(ii) Charges or fees for services performed must be reasonable.
(iii) Expenses incurred and payment received must be allocated to the insurer in conformity with customary insurance accounting practices consistently applied.
(iv) The books, accounts, and records of each party to all transactions must be so maintained as to clearly and accurately disclose the nature and details of the transactions including such accounting information as is necessary to support the reasonableness of the charges or fees to the respective parties.
(v) The insurer's surplus as regards policyholders following any dividends or distributions to shareholder affiliates must be reasonable in relation to the insurer's outstanding liabilities and adequate to its financial needs.
(2) The following transactions involving a domestic insurer and any person in its holding company system may not be entered into unless the insurer has notified the department in writing of its intention to enter into the transaction at least thirty days prior thereto, or such shorter period as the director or his designee may permit, and the director or his designee has not disapproved it within such period:
(i) sales, purchases, exchanges, loans, or extensions of credit, guarantees, or investments if the transactions are equal to or exceed:
(a) with respect to nonlife insurers, the lesser of three percent of the insurer's admitted assets or twenty-five percent of surplus as regards policyholders;
(b) with respect to life insurers, three percent of the insurer's admitted assets, each as of the thirty-first day of December next preceding;
(ii) loans or extensions of credit to any person who is not an affiliate, where the insurer makes the loans or extensions of credit with the agreement or understanding that the proceeds of the transactions, in whole or in substantial part, are to be used to make loans or extensions of credit to, to purchase assets of, or to make investments in, any affiliate of the insurer making the loans or extensions of credit as long as such transactions are equal to or exceed:
(a) with respect to nonlife insurers, the lesser of three percent of the insurer's admitted assets or twenty-five percent of surplus as regards policyholders;
(b) with respect to life insurers, three percent of the insurer's admitted assets, each as of the thirty-first day of December next preceding;
(iii) reinsurance agreements or modifications thereto in which the reinsurance premium or a change in the insurer's liabilities equals or exceeds five percent of the insurer's surplus as regards policyholders, as of the thirty-first day of December next preceding, including those agreements which may require as consideration the transfer of assets from an insurer to a nonaffiliate, if an agreement or understanding exists between the insurer and nonaffiliate that any portion of such assets will be transferred to one or more affiliates of the insurer;
(iv) all management agreements, service contracts, and all cost-sharing arrangements; and
(v) any material transactions, specified by regulation of the department, which the director or his designee determines may adversely affect the interests of the insurer's policyholders.
Nothing herein authorizes or permits any transactions which, in the case of an insurer, not a member of the same holding company system, would be otherwise contrary to law.
(3) A domestic insurer may not enter into transactions, which are part of a plan or series of like transactions with persons within the holding company system, if the purpose of those separate transactions is to avoid the statutory threshold amount and thus avoid the review that would occur otherwise. If the director or his designee determines that such separate transactions were entered into over any twelve-month period for such purpose, he may exercise his authority under Section 38-21-340.
(4) The director or his designee, in reviewing transactions pursuant to subsection (2), shall consider whether the transactions comply with the standards set forth in subsection (1) and whether they may adversely affect the interests of policyholders.
(5) The department must be notified within thirty days of any investment of the domestic insurer in any one corporation if the total investment in the corporation by the insurance holding company system exceeds ten percent of the corporation's voting securities."
Name changed
SECTION 582. Section 38-21-260 of the 1976 Code is amended to read:
"Section 38-21-260. For purposes of this chapter, in determining whether an insurer's surplus as regards policyholders is reasonable in relation to the insurer's outstanding liabilities and adequate to its financial needs, the following factors, among others, are considered:
(1) the size of the insurer as measured by its assets, capital and surplus, reserves, premium writings, insurance in force, and other appropriate criteria;
(2) the extent to which the insurer's business is diversified among the several lines of insurance;
(3) the number and size of risks insured in each line of business;
(4) the extent of the geographical dispersion of the insured risks;
(5) the nature and extent of the reinsurance program;
(6) the quality, diversification, and liquidity of the investment portfolio;
(7) the recent past and projected future trend in the size of the insurer's investment portfolio;
(8) the surplus as regards policyholders maintained by other comparable insurers;
(9) the adequacy of the reserves; and
(10) the quality and liquidity of investments in affiliates.
The director or his designee may treat any such investment as a disallowed asset for purposes of determining the adequacy of surplus as regards policyholders whenever in his judgment the investment so warrants."
Name changed
SECTION 583. Section 38-21-270 of the 1976 Code is amended to read:
"Section 38-21-270. (A) No domestic insurer may pay an extraordinary dividend or make another extraordinary distribution to its shareholders until the director or his designee:
(1) has approved the payment; or
(2) has not disapproved the payment within thirty days after receiving notice of the declaration.
(B) (1) For purposes of this section, an extraordinary dividend or distribution includes a dividend or distribution of cash or other property whose fair market value together with that of other dividends or distributions made within the preceding twelve months exceeds the greater of:
(a) ten percent of the insurer's surplus as regards policyholders as reflected in the insurers most recent annual statement;
(b) the net gain from operations of the insurer, if the insurer is a life insurer, or the net investment income, if the insurer is not a life insurer not including realized capital gains as reflected in the insurers most recent annual statement.
(2) It does not include pro rata distributions of a class of the insurer's own securities.
(C) An insurer may declare an extraordinary dividend or distribution which is conditional upon the approval of the director or his designee. The declaration confers no rights upon shareholders until the director or his designee:
(1) has approved the payment of the dividend or distribution; or
(2) has not disapproved the payment within thirty days after receiving notice of the declaration."
Name changed
SECTION 584. Section 38-21-280 of the 1976 Code is amended to read:
"Section 38-21-280. (a) In addition to his powers relating to examinations or investigations of insurers, the director or his designee has the power to order an insurer registered under Sections 38-21-130 through 38-21-240 to produce records, books, or other information papers in the possession of the insurer or its affiliates as considered necessary to ascertain the insurer's financial condition or legality of its conduct. If the insurer fails to comply with the order, the director or his designee has, in addition to powers prescribed in Section 38-21-340, the power to examine the affiliates to obtain this information.
(b) The director may retain at the registered insurer's expense attorneys, actuaries, accountants, and other experts not otherwise a part of the department's staff reasonably necessary to assist in the conduct of the examination under subsection (a). Any persons so retained are under the direction and control of the director or his designee and must act in a purely advisory capacity.
(c) Each registered insurer producing for examination records, books, and papers pursuant to subsection (a) is liable for and must pay the expense of the examination."
Name changed
SECTION 585. Section 38-21-290 of the 1976 Code is amended to read:
"Section 38-21-290. All information, documents, and copies thereof obtained by or disclosed to the director or any other person in the course of an examination or investigation made pursuant to Section 38-21-280 and all information reported pursuant to Sections 38-21-130 through 38-21-240 must be given confidential treatment and is not subject to subpoena and may not be made public by the director, the National Association of Insurance Commissioners, or any other persons, except to insurance departments of other states, without the prior written consent of the insurer to which it pertains unless the director or his designee, after giving the insurer and its affiliates who would be affected thereby notice and opportunity to be heard, determines that the interests of policyholders, shareholders, or the public will be served by the publication thereof, in which event he may publish all or any part thereof in the manner he considers appropriate."
Name changed, etc.
SECTION 586. Section 38-21-300 of the 1976 Code is amended to read:
"Section 38-21-300. The department or the director, as appropriate, may, upon notice and opportunity for all interested persons to be heard, issue regulations and orders necessary to carry out the provisions of this chapter."
Name changed; etc.
SECTION 587. Section 38-21-310 of the 1976 Code is amended to read:
"Section 38-21-310. Whenever it appears to the director or his designee that an insurer or a director, officer, employee, or agent of it has committed or is about to commit a violation of this chapter or of any regulation by the department or order issued by the director or his designee hereunder, the director or his designee may apply to the Circuit Court for the county in which the principal office of the insurer is located or if the insurer has no such office in this State then to the Circuit Court for Richland County for an order enjoining the insurer or its director, officer, employee, or agent from violating or continuing to violate this chapter or any regulation or order and for any other equitable relief which the nature of the case and the interests of the insurer's policyholders, creditors, and shareholders or the public may require."
Name changed; issuance of regulations
SECTION 588. Section 38-21-320 of the 1976 Code is amended to read:
"Section 38-21-320. No security which is the subject of an agreement or arrangement regarding acquisition, or which is acquired or to be acquired, in contravention of this chapter or of any regulation issued by the department or order issued by the director or his designee hereunder may be voted at any shareholders' meetings or may be counted for quorum purposes, and any action of shareholders requiring the affirmative vote of a percentage of shares may be taken as though these securities were not issued and outstanding. No action taken at a shareholders' meeting may be invalidated by the voting of these securities, unless the action would materially affect control of the insurer or unless the courts of this State have so ordered. If an insurer or the director or his designee has reason to believe that any security of the insurer has been or is about to be acquired in contravention of this chapter or of any regulation issued by the department or order issued by the director or his designee hereunder, the insurer or the director or his designee may apply to the Circuit Court for Richland County or to the Circuit Court for the county in which the insurer has its principal place of business to enjoin any offer, request, invitation, agreement, or acquisition made in contravention of Sections 38-21-60 through 38-21-120 or any regulation issued by the department or order issued by the director or his designee thereunder, to enjoin the voting of any security so acquired, to void any vote of the security already cast at any meeting of shareholders, and for any other equitable relief which the nature of the case and the interests of the insurer's policyholders, creditors, and shareholders or the public may require."
Name changed; issuance of regulations
SECTION 589. Section 38-21-330 of the 1976 Code is amended to read:
"Section 38-21-330. In a case where a person has acquired or is proposing to acquire voting securities in violation of this chapter, or any regulation issued by the department or order issued by the director or his designee hereunder, the Circuit Court for Richland County or the Circuit Court for the county in which the insurer has its principal place of business may, on notice which the court considers appropriate, upon the application of the insurer or the director or his designee, seize or sequester any voting securities of the insurer owned directly or indirectly by this person and issue orders appropriate to effectuate this chapter. Notwithstanding any other provision of law, for the purposes of this chapter the situs of the ownership of the securities of domestic insurers is considered to be in this State."
Name changed
SECTION 590. Section 38-21-340 of the 1976 Code is amended to read:
"Section 38-21-340. (a) Any insurer failing, without just cause, to file any registration statement or summary thereof as required in this chapter is required, after notice and hearing, to pay a penalty of one thousand dollars for each day's delay, to be recovered by the director or his designee, and the penalty so recovered must be paid into the general fund of the state. The maximum penalty under this section is thirty thousand dollars. The director or his designee may reduce the penalty if the insurer demonstrates to the director or his designee that the imposition of the penalty would constitute a financial hardship to the insurer.
(b) Every director or officer of an insurance holding company system who knowingly violates, participates in, or assents to, or who knowingly permits any of the officers or agents of the insurer to engage in transactions or make investments which have not been properly reported or submitted pursuant to this chapter or which violate this chapter, shall pay, in their individual capacity, a civil forfeiture of not more than ten thousand dollars per violation, after notice and hearing before the director or his designee. In determining the amount of the civil forfeiture, the director or his designee shall take into account the appropriateness of the forfeiture with respect to the gravity of the violation, the history of previous violations, and other matters as justice may require.
(c) Whenever it appears to the director or his designee that any insurer subject to this chapter or any director, officer, employee, or agent thereof has engaged in any transaction or entered into a contract which is subject to Sections 38-21-250 through 38-21-270 and which would not have been approved had such approval been requested, the director or his designee may order the insurer to cease and desist immediately any further activity under that transaction or contract. After notice and hearing the director or his designee may also order the insurer to void any such contracts and restore the status quo if such action is in the best interest of the policyholders, creditors, or the public.
(d) Whenever it appears to the director or his designee that an insurer or a director, officer, employee, or agent of it has committed a willful violation of this chapter, the director or his designee may, in addition to other powers prescribed in this section, cause criminal proceedings to be instituted in the Circuit Court for the county in which the principal office of the insurer is located or, if the insurer has no such office in the state, then in the Circuit Court for Richland County against the insurer or the responsible director, officer, employee, or agent of it. An insurer which willfully violates this chapter may be fined not more than fifty thousand dollars. An individual who willfully violates this chapter is guilty of a misdemeanor and, upon conviction, must be fined an amount not to exceed ten thousand dollars or be imprisoned for a term not to exceed two years, or both.
(e) Any officer, director, or employee of an insurance holding company system who willfully and knowingly subscribes to or makes or causes to be made any false statements or false reports or false filings with the intent to deceive the director or his designee in the performance of his duties under this chapter is guilty of a misdemeanor and, upon conviction, must be imprisoned for not more than two years or fined ten thousand dollars, or both. Any fines imposed must be paid by the officer, director, or employee in his individual capacity.
(f) Whenever it appears to the director or his designee that any insurer has committed a violation of this chapter, or that any person has committed a violation of this chapter which makes continued operation of the insurer contrary to the interests of policyholders or the public, the director or his designee may, after giving notice and an opportunity to be heard, determine to suspend, revoke, or refuse to renew such insurer's license or authority to do business in this State for such period as he finds is required for the protection of policyholders or the public. Any such determination must be accompanied by specific findings of fact and conclusions of law."
Name changed
SECTION 591. Section 38-21-350 of the 1976 Code is amended to read:
"Section 38-21-350. Whenever it appears to the director or his designee that a person has committed a violation of this chapter which so impairs the financial condition of a domestic insurer as to threaten insolvency or make the further transaction of business by it hazardous to its policyholders, creditors, or the public, then the director or his designee may proceed as provided in Chapter 27 of this title to take possession of the property of the insurer and to conduct its business."
Name changed; language deleted; reference added to Administrative Law Judge Division
SECTION 592. Section 38-21-370 of the 1976 Code is amended to read:
"Section 38-21-370. Any action, order, or decision of the director or his designee pursuant to this chapter is subject to judicial review by the Administrative Law Judge Division as provided by law."
Name changed
SECTION 593. Section 38-23-20 of the 1976 Code is amended to read:
"Section 38-23-20. `Equity security', when used in this chapter, means any stock or similar security; or any security convertible, with or without consideration, into such a security, or carrying any warrant or right to subscribe to or purchase such a security; or any such warrant or right; or any other security which the director or his designee considers to be of similar nature and considers necessary or appropriate, by any regulation the department may prescribe in the public interest or for the protection of investors, to treat as an equity security."
Name changed
SECTION 594. Section 38-23-40 of the 1976 Code is amended to read:
"Section 38-23-40. Every beneficial owner, director, or officer of a domestic stock insurer shall file in the office of the department within ten days after he becomes a beneficial owner, director, or officer a statement, in a form the director or his designee may prescribe, of the amount of all equity securities of the insurer which he beneficially owns. Within ten days after the close of each calendar month thereafter, if there has been a change in his ownership during the month, he shall file in the office of the department a statement, in a form the director or his designee may prescribe, indicating his ownership at the close of the calendar month and the changes in his ownership which have occurred during the calendar month."
Name changed
SECTION 595. Section 38-23-50 of the 1976 Code is amended to read:
"Section 38-23-50. For the purpose of preventing the unfair use of information which may have been obtained by a beneficial owner, director, or officer by reason of his relationship to the insurer, any profit realized by him from any purchase and sale, or any sale and purchase, of any equity security of the insurer within any period of less than six months, unless the security was acquired in good faith in connection with a debt previously contracted, inures to and is recoverable by the insurer, irrespective of any intention on the part of the beneficial owner, director, or officer in entering into the transaction of holding the security purchased or of not repurchasing the security sold for a period exceeding six months. Suit to recover this profit may be instituted at law or in equity in any court of competent jurisdiction by the insurer or by the owner of any security of the insurer in the name and in behalf of the insurer if the insurer fails or refuses to bring the suit within sixty days after request or fails diligently to prosecute it thereafter. This suit may not be brought more than two years after the date the profit was realized. This section may not be construed to cover any transaction where the beneficial owner was not a beneficial owner both at the time of the purchase and sale, or the sale and purchase, of the security involved, or any transaction or transactions which the department, by regulation, may exempt as not comprehended within the purpose of this section."
Name changed
SECTION 596. Section 38-23-70 of the 1976 Code is amended to read:
"Section 38-23-70. Section 38-23-50 does not apply to any purchase and sale, or sale and purchase, and Section 38-23-60 does not apply to any sale of an equity security of a domestic stock insurer, not then or theretofore held by him in an investment account, by a dealer in the ordinary course of his business and incident to the establishment or maintenance by him of a primary or secondary market, otherwise than on an exchange as defined in the Securities Exchange Act of 1934, for the security. The department may, by any regulation it considers necessary or appropriate in the public interest, define and prescribe terms and conditions with respect to securities held in an investment account and transactions made in the ordinary course of business and incident to the establishment or maintenance of a primary or secondary market."
Name changed
SECTION 597. Section 38-23-80 of the 1976 Code is amended to read:
"Section 38-23-80. Sections 38-23-40 to 38-23-60 do not apply to foreign or domestic arbitrage transactions unless made in contravention of regulations the department may adopt in order to carry out the purposes of this chapter."
Name changed
SECTION 598. Section 38-23-100 of the 1976 Code is amended to read:
"Section 38-23-100. The director has the power to make and promulgate regulations necessary for the execution of the functions vested in him by Sections 38-23-20 through 38-23-90 including, but without limitation, regulations pertaining to and governing the solicitation of proxies, including financial reporting in connection therewith, with respect to the capital stock or other equity securities of any domestic stock insurer; he may, for these purposes, classify domestic insurers, securities, and other persons or matters within his jurisdiction. No provision of Sections 38-23-40 to 38-23-60 imposing any liability applies to any act done or omitted in good faith in conforming with any regulation of the department, notwithstanding that the regulation may, after the act or omission, be amended, rescinded, or determined by judicial or other authority to be invalid for any reason."
Name changed; reference to Administrative Law Judge Division
SECTION 599. Section 38-25-10 of the 1976 Code is amended to read:
"Section 38-25-10. (a) The General Assembly declares that it is concerned with the protection of residents of this State against acts by insurers not authorized to conduct an insurance business in this State, by the maintenance of fair and honest insurance markets, by protecting authorized insurers which are subject to regulation from unfair competition by unauthorized insurers, and by protecting against the evasion of the insurance regulatory laws of this State. In furtherance of this state interest, the General Assembly herein provides methods for substituted service of process upon such insurers in any proceeding, suit, or action in any court, including the Administrative Law Judge Division as provided by law, and substituted service of any notice, order, pleading, or process upon such insurers in any proceeding by the director or his designee to enforce or effect full compliance with the insurance laws of this State. In so doing, the state exercises its powers to protect residents of this State and to define what constitutes transacting an insurance business in this State and also exercises powers and privileges available to this State by virtue of Public Law 79-15, 79th Congress of the United States, Chapter 20, 1st Session, S. 340, 59 Stat. 33; 15 U.S.C., Sections 1011 to 1015, inclusive, as amended, which declares that the business of insurance and every person engaged therein are subject to the laws of the several states.
(b) The remedies and proceedings provided in this chapter are in addition to, and not in substitution for, any other remedies or proceedings provided by law."
Name changed
SECTION 600. Section 38-25-110 of the 1976 Code is amended to read:
"Section 38-25-110. It is unlawful for an insurer to transact insurance business in this State without a certificate of authority from the director or his designee. Any of the acts listed in items (1) through (8) in this State effected by mail or otherwise by or on behalf of an unauthorized insurer is considered to constitute the transaction of an insurance business in this State. The venue of an act committed by mail is at the point where the matter transmitted by mail is delivered and takes effect. Unless otherwise indicated, the term `insurer' as used in this section includes all corporations, associations, partnerships, and individuals engaged as principals in the business of insurance and also includes interinsurance exchanges and mutual benefit societies.
(1) The making of or proposing to make, as an insurer, an insurance contract.
(2) The making of or proposing to make, as guarantor or surety, any contract of guaranty or suretyship as a vocation and not merely incidental to any other legitimate business or activity of the guarantor or surety.
(3) The taking or receiving of any application for insurance.
(4) The receiving or collection of any premium, commission, membership fees, assessments, dues, or other consideration for any insurance or any part thereof.
(5) The issuance or delivery of contracts of insurance to residents of this State or to persons authorized to do business in this State.
(6) Directly or indirectly acting as an agent for or otherwise representing or aiding on behalf of another, any person or insurer in the solicitation, negotiation, procurement, or effectuation of insurance or renewals thereof or in the dissemination of information as to coverage or rates, or forwarding of applications, or delivery of policies or contracts, or inspection of risks, a fixing of rates or investigation or adjustment of claims or losses or in the transaction of matters after effectuation of the contract and arising out of it, or in any other manner representing or assisting a person or insurer in the transaction of insurance with respect to subjects of insurance resident, located, or to be performed in this State. This section does not prohibit full-time salaried employees of a corporate insured from acting in the capacity of an insurance manager or buyer in placing insurance in behalf of their employer.
(7) The transaction of any kind of insurance business specifically recognized as transacting an insurance business within the meaning of the statutes relating to insurance.
(8) The transacting or proposing to transact any insurance business in substance equivalent to any of the foregoing in a manner designed to evade the insurance laws of this State."
Name changed; etc.
SECTION 601. Section 38-25-160 of the 1976 Code is amended to read:
"Section 38-25-160. The director or his designee may, by regulation of the department or by his order, exempt from all or any provisions of this chapter an insurer or other organization not formed or operating for profit which affords life insurance or annuities to nonprofit educational and scientific institutions and their staff members in this State. However, in affording this exemption the director or his designee shall require the insurer or other organization to appoint the director as agent for service of process. The director or his designee may require the insurer or other organization to file with the department, as information, policy forms, annual statements, and financial and other similar material. The director or his designee may, after due notice and hearing, discontinue the exemption for any reason which would have, if then existing or known, justified his refusal to afford the exemption when it was granted."
Name changed
SECTION 602. Section 38-25-310 of the 1976 Code is amended to read:
"Section 38-25-310. Whenever the director or his designee believes, from evidence satisfactory to him, that an insurer is violating or about to violate Section 38-25-110 the director or his designee may, through the Attorney General, cause a complaint to be filed in the Court of Common Pleas of Richland County to enjoin and restrain the insurer from continuing the violation, engaging in the violation, or doing any act in furtherance of the violation. The court has jurisdiction of the proceeding and has the power to make and enter an order or judgment awarding preliminary or final injunctive relief as in its judgment is proper."
Name changed
SECTION 603. Section 38-25-510 of the 1976 Code is amended to read:
"Section 38-25-510. (a) Any act of transacting an insurance business as set forth in Section 38-25-110 by an unauthorized insurer is equivalent to and constitutes an irrevocable appointment by the insurer, binding upon him, his executor or administrator, or successor in interest if a corporation, of the Secretary of State or his successor in office to be the true and lawful attorney of the insurer upon whom may be served all lawful process in any action, suit, or proceeding in any court by the director or his designee or by the state and upon whom may be served any notice, order, pleading, or process in any proceeding before the director or his designee and which arises out of transacting an insurance business in this State by the insurer. Any act of transacting an insurance business in this State by an unauthorized insurer is signification of its agreement that any lawful process in the court action, suit, or proceeding and any notice, order, pleading, or process in the administrative proceeding before the director or his designee so served is of the same legal force and validity as personal service of process in this State upon the insurer.
(b) Service of process in the action must be made by delivering to and leaving with the Secretary of State, or some person in apparent charge of his office, two copies thereof and by payment to the Secretary of State of the fee prescribed by law. Service upon the Secretary of State as attorney is service upon the principal.
(c) The Secretary of State shall immediately forward by certified mail one of the copies of the process or the notice, order, pleading, or process in proceedings before the director or his designee to the defendant in the court proceeding or to whom the notice, order, pleading, or process in the administrative proceeding is addressed or directed at its last known principal place of business and shall keep a record of all process so served on him which shall show the day and hour of service. The service is sufficient if:
(1) Notice of the service and a copy of the court process or the notice, order, pleading, or process in the administrative proceeding are sent within ten days thereafter by certified mail by the plaintiff or the plaintiff's attorney in the court proceeding or by the director or his designee in the administrative proceeding to the defendant in the court proceeding or to whom the notice, order, pleading, or process in the administrative proceeding is addressed or directed at the last known principal place of business of the defendant in the court or administrative proceeding.
(2) The defendant's receipt or receipts issued by the post office with which the letter is registered, showing the name of the sender of the letter and the name and address of the person or insurer to whom the letter is addressed, and an affidavit of the plaintiff or the plaintiff's attorney in a court proceeding or of the director or his designee in an administrative proceeding, showing compliance therewith, are filed with the clerk of court in which the action, suit, or proceeding is pending or with the director or his designee in administrative proceedings, by the date the defendant in the court or administrative proceeding is required to appear or respond thereto, or within any further time as the court or director or his designee may allow.
(d) No plaintiff is entitled to a judgment by default, a judgment with leave to prove damages, or a judgment pro confesso in any court or administrative proceeding in which court process or notice, order, pleading, or process in proceedings before the director or his designee is served under this section until the expiration of thirty days from the date of filing of the affidavit of compliance.
(e) Nothing in this section limits or affects the right to serve any process, notice, order, or demand upon any person or insurer in any other manner permitted by law."
Name changed
SECTION 604. Section 38-25-520 of the 1976 Code is amended to read:
"Section 38-25-520. (a) The issuance and delivery of a policy of insurance or contract of insurance or indemnity to any person in this State or the collection of a premium thereon by an insurer not licensed in this State, as herein required, irrevocably constitutes the director and any successor of his in office the true and lawful attorney in fact upon whom service of any and all processes, pleadings, actions, or suits arising out of the policy or contract in behalf of the insured may be made.
(b) Service of process in this action is made by delivering to and leaving with the director or some person in apparent charge of his office two copies of it and by payment to the director of a fee of ten dollars, of which five dollars must be retained by the director to offset the costs he incurs in service of process and of which five dollars must be deposited to the credit of the general fund of the state.
(c) The director or his designee shall immediately mail by registered mail one of the copies of the process to the defendant at its last known principal place of business and shall keep a record of all process served upon him. The service of process is sufficient if: (1) notice of the service and a copy of the process are sent within ten days thereafter by registered mail by the plaintiff's attorney to the defendant at its last known principal place of business, and (2) the defendant's receipt or a receipt issued by the post office with which the letter is registered, showing the name of the sender of the letter and the name and address of the person to whom the letter is addressed, and the affidavit of the plaintiff's attorney showing compliance herewith are filed with the clerk of court in which the action is pending by the date the defendant is required to appear or within any further time which the court may allow.
(d) No plaintiff is entitled to a judgment by default, a judgment with leave to prove damages, or a judgment pro confesso under this section until the expiration of thirty days from the date of filing of the affidavit of compliance.
(e) Nothing in this section limits or abridges the right to serve any process, notice, order, or demand upon any person or insurer in any other manner permitted by law."
Name changed
SECTION 605. Section 38-25-540 of the 1976 Code is amended to read:
"Section 38-25-540. An unauthorized insurer is not permitted to maintain any action, suit, or proceeding in this State to enforce a right, claim, or demand arising out of the transaction of insurance business until the insurer has obtained a certificate of authority to transact insurance business in this State. The unauthorized insurer may maintain an action, suit, or proceeding in connection with its investments in this State or in connection with a contract issued by it at a time when it was authorized to do business in the state where the contract was issued. This section does not prevent the insurer from defending an action in the courts of this State. The failure of an insurer transacting insurance business in this State to obtain a certificate of authority does not impair the validity of any act or contract of the insurer. This section does not apply to an eligible surplus lines insurer which maintains the deposit required by Section 38-9-80 or which has on file with the department a surety bond issued by an admitted insurer in an amount determined by the director or his designee to be sufficient to meet the security requirements of Section 38-9-80. Before an eligible surplus lines insurer files or causes to be filed any action, suit, or proceeding in this State to enforce a right, claim, or demand arising out of the transaction of insurance, it shall produce evidence that the security deposit is presently on file or that the required surety bond is then in force and effect."
Name changed
SECTION 606. Section 38-25-550 of the 1976 Code is amended to read:
"Section 38-25-550. (a) Before an unauthorized insurer files or causes to be filed any pleading in any court action, suit, or proceeding or any notice, order, pleading, or process in an administrative proceeding before the director or his designee instituted against the person or insurer, the insurer shall either:
(1) Deposit with the clerk of court in which the action, suit, or proceeding is pending, or with the director or his designee in administrative proceedings before the director or his designee, cash or securities, or file with the clerk of court or the director or his designee a bond with good and sufficient sureties, to be approved by the clerk or director or his designee, in an amount to be fixed by the court or director or his designee sufficient to secure the payment of any final judgment which may be rendered in the action or administrative proceeding.
(2) Procure a certificate of authority to transact the business of insurance in this State. In considering the application of an insurer for a certificate of authority, for the purposes of this paragraph, the director or his designee need not assert the provisions of Section 38-7-90 against the insurer with respect to its application if he determines that the insurer would otherwise comply with the requirements for a certificate of authority.
(b) The director or his designee, in an administrative proceeding in which service is made as provided in Section 38-25-510, may in his discretion order a postponement as may be necessary to afford the defendant reasonable opportunity to comply with subsection (a) and to defend the action.
(c) This section does not apply to an eligible surplus lines insurer which maintains the deposit required by Section 38-9-80 or which has on file with the department a surety bond issued by an admitted insurer in an amount determined by the director or his designee to be sufficient to meet the security requirements of Section 38-9-80. Before an eligible surplus lines insurer files or causes to be filed any action, suit, or proceeding in this State to enforce a right, claim, or demand arising out of the transaction of insurance, it shall produce evidence that the security deposit is presently on file or that the required surety bond is then in force and effect."
Name changed
SECTION 607. Section 38-25-570 of the 1976 Code is amended to read:
"Section 38-25-570. (a) The Attorney General upon request of the director or his designee may proceed in the courts of this State or any reciprocal state to enforce an order or decision in any court proceeding or in any administrative proceeding before the director or his designee.
(b) As used in this section:
(1) `Reciprocal state' means any state or territory of the United States the laws of which contain procedures substantially similar to those specified in this section for the enforcement of decrees or orders in equity issued by courts located in other states or territories of the United States against an insurer incorporated or authorized to do business in that state or territory.
(2) `Foreign decree' means any decree or order in equity of a court located in a reciprocal state, including a court of the United States located therein, against any insurer incorporated or authorized to do business in this State.
(3) `Qualified party' means a state regulatory agency acting in its capacity to enforce the insurance laws of its state.
(c) The director or his designee shall determine which states and territories qualify as reciprocal states and shall maintain an up-to-date list of these states.
(d) A copy of any foreign decree authenticated in accordance with the law of this State may be filed in the office of the clerk of court of any Circuit Court of this State. The clerk, upon verifying with the department that the decree or order qualifies as a foreign decree, shall treat the foreign decree in the same manner as a decree of a Circuit Court of this State. A foreign decree so filed has the same effect as a decree of a Circuit Court of this State and is subject to the same procedures, defenses, and proceedings for reopening, vacating, or staying as a decree of a Circuit Court of this State and may be enforced or satisfied in like manner.
(e) (1) At the time of the filing of the foreign decree, the Attorney General shall make and file with the clerk of court an affidavit setting forth the name and last known post office address of the defendant.
(2) Promptly upon the filing of the foreign decree and the affidavit, the clerk shall mail notice of the filing of the foreign decree to the defendant at the address given and to the department and shall make a note of the mailing in the docket. In addition, the Attorney General may mail a notice of the filing of the foreign decree to the defendant and to the department and may file proof of mailing with the clerk. Failure to mail notice of the filing by the clerk does not affect the enforcement proceedings if proof of mailing by the Attorney General has been filed.
(3) No execution or other process for enforcement of a foreign decree filed hereunder may issue for thirty days after the date the decree is filed.
(f)(1) If the defendant shows the Circuit Court that an appeal from the foreign decree is pending or will be taken, or that a stay of execution has been granted, the court shall stay enforcement of the foreign decree until the appeal is concluded, the time for appeal expires, or the stay of execution expires or is vacated, upon proof that the defendant has furnished the security for the satisfaction of the decree required by the state in which it was rendered.
(2) If the defendant shows the Circuit Court any ground upon which enforcement of a decree of any Circuit Court of this State would be stayed, the court shall stay enforcement of the foreign decree for an appropriate period, upon requiring the same security for satisfaction of the decree which is required in this State.
(g) Any person filing a foreign decree shall pay to the clerk of court fifteen dollars. Fees for docketing, transcription, or other enforcement proceedings are as provided for decrees of the Circuit Court."
Name changed; etc.
SECTION 608. Chapter 26, Title 38 of the 1976 Code is amended to read:
"CHAPTER 26
Administrative Supervision of Insurers Act
Section 38-26-10. This chapter may be cited as the `Administrative Supervision of Insurers Act".
Section 38-26-20. As used in this chapter:
(1) `Insurer' means a person who has done, purports to do, is going to do, or is licensed to do an insurance business and is or has been subject to the authority of, or to liquidation, rehabilitation, reorganization, supervision, or conservation by the department, or similar entity, of a state. For purposes of this chapter, other persons included under Section 38-27-40 are considered insurers.
(2) `Exceed its powers' means the following conditions:
(a) The insurer has refused to permit examination of its books, papers, accounts, records, or affairs by the director or his deputies, designees, employees, or commissioned examiners.
(b) A domestic insurer unlawfully has removed from this State books, papers, accounts, or records necessary for an examination of the insurer.
(c) The insurer has failed to comply promptly with the applicable financial reporting statutes or regulations and related departmental requests.
(d) The insurer has neglected or refused to observe an order of the director or his designee to make good, within the time prescribed by law, prohibited deficiency in its capital, capital stock, or surplus.
(e) The insurer is continuing to transact insurance or write business after its license has been revoked or suspended by the director or his designee.
(f) The insurer, by contract or otherwise, unlawfully, in violation of an order of the director or his designee, or without first having obtained written approval of the director or his designee if approval is required by law has:
(i) totally reinsured its entire outstanding business; or
(ii) merged or consolidated substantially its entire property or business with another insurer.
(g) The insurer engaged in a transaction in which it is not authorized to engage under the laws of this State.
(h) The insurer refused to comply with a lawful order of the director or his designee.
(3) `Consent' means agreement to administrative supervision by the insurer.
Section 38-26-30.The provisions of this chapter apply to:
(1) domestic insurers;
(2) an insurer doing business in this State whose state of domicile has asked the director or his designee to apply the provisions of this chapter as regards the insurer.
Section 38-26-40. (A) An insurer may be subject to administrative supervision by the department if upon examination or at another time it appears in the discretion of the director or his designee that one or more of the following circumstances exist:
(1) The insurer's condition renders the continuance of its business hazardous to the public or to its insureds.
(2) The insurer has exceeded its powers granted under its certificate of authority and applicable law.
(3) The insurer has failed to comply with a provision of the insurance laws of this State.
(4) The business of the insurer is being conducted fraudulently.
(5) The insurer gives its consent.
(B) If the director or his designee determines that one or more of the conditions set forth in subsection (A) exist, he shall:
(1) notify the insurer of his determination;
(2) furnish to the insurer a written list of the requirements to abate this determination;
(3) notify the insurer that it is under the supervision of the department and that the director or his designee is applying the provisions of the chapter. Action by the director or his designee is subject to review pursuant to related regulations and the Administrative Procedures Act.
(C) If placed under administrative supervision, the insurer has sixty days or another period of time designated by the director or his designee to comply with the requirements of the department subject to the provisions of this chapter.
(D) If it is determined after notice and hearing that the conditions giving rise to the supervision still exist at the end of the supervision period, the director or his designee may extend the period or may initiate proceedings under Chapter 27 of this title.
(E) If it is determined that none of the conditions giving rise to the supervision exist, the director or his designee shall release the insurer from supervision.
Section 38-26-50. (A) Proceedings, hearings, notices, correspondence, reports, records, and other information in the possession of the director, his designee, or the Department of Insurance relating to the supervision of an insurer are confidential except as provided by this section.
(B) Department personnel have access to the proceedings, hearings, notices, correspondence, reports, records, and other information permitted by the director or his designee.
(C) The director or his designee may open the proceedings or hearings or disclose notices, correspondence, reports, records, or other information to a department, agency, or instrumentality of this or another state or of the United States if the director or his designee determines that the disclosure is necessary or proper for the enforcement of the laws of this or another state or the United States.
(D) The director or his designee may open the proceedings or hearings or make public notices, correspondence, reports, records, or other information if the director or his designee determines that it is in the best interest of the public or in the best interest of the insurer, its insureds, its creditors, or the general public.
(E) This section does not apply to hearings, notices, correspondence, reports, records, or other information obtained after the appointment of a receiver for the insurer by a court of competent jurisdiction.
Section 38-26-60. During the period of supervision, the director or his designated appointee shall serve as the administrative supervisor. The director or his designee may provide, after notice to the insurer, that the insurer may not do any of the following things during supervision without the prior approval of the director or his appointed supervisor:
(1) dispose of, convey, or encumber its assets or its business in force;
(2) withdraw its bank accounts;
(3) lend its funds;
(4) invest its funds;
(5) transfer its property;
(6) incur debt, obligation, or liability;
(7) merge or consolidate with another company;
(8) approve new premiums or renew policies;
(9) enter into a new reinsurance contract or treaty;
(10) terminate, surrender, forfeit, convert, or lapse an insurance policy, a certificate, or a contract, except for nonpayment of premiums due;
(11) release, pay, or refund premium deposits, accrued cash or loan values, unearned premiums, or other reserves on an insurance policy, certificate, or contract;
(12) make a material change in management;
(13) 20.31 increase salaries and benefits of officers or directors or the preferential payment of bonuses, dividends, or other preferential payments.
Section 38-26-70. During supervision the insurer may contest an action taken or proposed to be taken by the supervisor specifying the manner in which the action being complained of would not result in improving the condition of the insurer. Denial of the insurer's request upon reconsideration entitles the insurer to review under related regulation and the Administrative Procedures Act.
Section 38-26-80. Nothing in this chapter precludes the director or his designee from initiating judicial proceedings to place an insurer in conservation, rehabilitation, or liquidation or other delinquency proceedings, however designated under the laws of this State, regardless of whether the director or his designee previously has initiated administrative supervision proceedings under this chapter against the insurer.
Section 38-26-90. The director or his designee may meet with a supervisor appointed under this chapter and with his attorney or other representative without the presence of another person at the time of or during a proceeding held under authority of this chapter to carry out the duties of the director or his designee or for the supervisor to carry out his duties under this chapter.
Section 38-26-100. There is no liability on the part of, and no cause of action may arise against, the director, his designee, or the Department of Insurance or its employees or agents for action taken by them in the performance of their powers and duties under this chapter.
Section 38-26-110. The department may promulgate regulations necessary for the implementation of this chapter."
Name changed; etc.
SECTION 609. Article 1, Chapter 27, Title 38 of the 1976 Code is amended to read:
"CHAPTER 27
Insurers' Rehabilitation
and Liquidation Act
Article 1
General Provisions
Section 38-27-10. This chapter may be cited as the `Insurers Rehabilitation and Liquidation Act'.
Section 38-27-20. This chapter does not limit the powers granted the director or his designee by other provisions of law and must be liberally construed to effect the purpose stated in Section 38-27-30.
Section 38-27-30. The purpose of this chapter is the protection of the interests of insureds, claimants, creditors, and the public generally, with minimum interference with the normal prerogatives of the owners and managers of insurers, through:
(1) Early detection of any potentially dangerous condition in an insurer and prompt application of appropriate corrective measures.
(2) Improved methods for rehabilitating insurers, involving the cooperation and management expertise of the insurance industry.
(3) Enhanced efficiency and economy of liquidation, through clarification of the law, to minimize legal uncertainty and litigation.
(4) Equitable apportionment of any unavoidable loss.
(5) Lessening the problems of interstate rehabilitation and liquidation by facilitating cooperation between states in the liquidation process and by extending the scope of personal jurisdiction over debtors of the insurer outside this State.
(6) Regulation of the insurance business by the impact of the law relating to delinquency procedures and substantive rules on the entire insurance business.
Section 38-27-40. The proceedings authorized by this chapter may be applied to:
(1) insurers who are doing, or have done, an insurance business in this State and against whom claims arising from that business may exist now or in the future;
(2) insurers who purport to do an insurance business in this State;
(3) insurers who have insureds resident in this State;
(4) other persons organized or in the process of organizing with the intent to do an insurance business in this State;
(5) nonprofit service plans, fraternal benefit societies, and beneficial societies;
(6) title insurance companies;
(7) surety companies subject to Chapter 15 of Title 38;
(8) multiple employer self-insured health plans defined in Chapter 41 of Title 38;
(9) prepaid health care delivery plans.
Section 38-27-50. For purposes of this chapter:
(1) `Ancillary state' means any state other than a domiciliary state.
(2) `Creditor' is a person having any claim, whether matured or unmatured, liquidated or unliquidated, secured or unsecured, absolute, fixed, or contingent.
(3) `Delinquency proceeding' means a proceeding instituted against an insurer to liquidate, rehabilitate, reorganize, or conserve the insurer and a summary proceeding under Section 38-27-220. `Formal delinquency proceeding' means a liquidation or rehabilitation proceeding.
(4) `Doing business' includes any of the following acts, whether effected by mail or otherwise:
(a) the issuance or delivery of contracts of insurance to persons resident in this State;
(b) the solicitation of applications for such contracts or other negotiations preliminary to the execution of such contracts;
(c) the collection of premiums, membership fees, assessments, or other consideration for such contracts;
(d) the transaction of matters subsequent to execution of such contracts and arising out of them; or
(e) operating under a license or certificate of authority, as an insurer, issued by the director or his designee.
(5) `Domiciliary state' means the state in which an insurer is incorporated or organized, or, in the case of an alien insurer, its state of entry.
(6) `Fair consideration' is given for property or obligation:
(a) when in exchange for the property or obligation, as a fair equivalent therefor and in good faith, property is conveyed or services are rendered or an obligation is incurred or an antecedent debt is satisfied; or
(b) when the property or obligation is received in good faith to secure a present advance or antecedent debt in amount not disproportionately small as compared to the value of the property or obligation obtained.
(7) `Foreign country' means any other jurisdiction not in any state.
(8) `General assets' means all property, real, personal, or otherwise, not specifically mortgaged, pledged, deposited, or otherwise encumbered for the security or benefit of specified persons or classes of persons. As to specifically encumbered property, `general assets' includes all such property or its proceeds in excess of the amount necessary to discharge the sum or sums secured thereby. Assets held in trust and on deposit for the security or benefit of all policyholders or all policyholders and creditors, in more than a single state, are treated as general assets.
(9) `Guaranty association' means the South Carolina Property and Casualty Insurance Guaranty Association, the South Carolina Life and Accident and Health Insurance Guaranty Association, and any other similar entity created by the legislature of this State for the payment of claims of insolvent insurers. `Foreign guaranty association' means any similar entity created by the legislature of any other state.
(10) `Insolvency' or `insolvent' means:
(a) For an insurer issuing only assessable fire insurance policies:
(i) the inability to pay any obligation within thirty days after it becomes payable, or
(ii) if an assessment is made within thirty days after that date, the inability to pay the obligation thirty days following the date specified in the first assessment notice issued after the date of loss.
(b) For any other insurer, that it is unable to pay its obligations when they are due, or when its admitted assets do not exceed its liabilities plus the greater of:
(i) any capital and surplus required by law for its organization, or
(ii) the total par or stated value of its authorized and issued capital stock.
(c) For purposes of this item (10) `liabilities' includes, but is not limited to, reserves required by statute, regulations, or specific requirements imposed by the director or his designee upon a subject company at the time of admission or subsequent thereto.
(11) `Insurer' means any person who has done, purports to do, is doing, or is licensed to do an insurance business and is or has been subject to the authority of, or to liquidation, rehabilitation, reorganization, supervision, or conservation by, the commissioner of insurance, or similar entity, of any state. For purposes of this chapter, any other persons included under Section 38-27-40 are considered insurers.
(12) `Person' means natural persons, corporations, partnerships, trusts, associations, societies, orders, or any other organizations or entities.
(13) `Preferred claim' means any claim with respect to which the terms of this chapter accord priority of payment from the general assets of the insurer.
(14) `Receiver' means receiver, liquidator, rehabilitator, or conservator as the context requires.
(15) `Reciprocal state' means any state other than this State in which in substance and effect subsection (a) of Section 38-27-370, Section 38-27-930, Section 38-27-940, and Sections 38-27-960 through 38-27-980 are in force, and in which provisions are in force requiring that the director, his designee, or equivalent official be the receiver of a delinquent insurer, and in which some provision exists for the avoidance of fraudulent conveyances and preferential transfers.
(16) `Secured claim' means any claim secured by mortgage, trust deed, pledge, deposit as security, escrow, or otherwise, but not including special deposit claims or claims against general assets. The term also includes claims which have become liens upon specific assets by reason of judicial process.
(17) `Special deposit claim' means any claim secured by a deposit made pursuant to statute for the security or benefit of a limited class or classes of persons, but not including any claim secured by general assets.
(18) `State' means any state, district, or territory of the United States and the Panama Canal Zone.
(19) `Transfer' includes the sale and every other and different mode, direct or indirect, of disposing of or of parting with property or with an interest therein or with the possession thereof or of fixing a lien upon property or upon an interest therein, absolutely or conditionally, voluntarily, by or without judicial proceedings. The retention of a security title to property delivered to a debtor is considered a transfer suffered by the debtor.
Section 38-27-60. (a) Except as provided in this subsection, no delinquency proceeding may be commenced under this chapter by anyone other than the director or his designee and no court has jurisdiction to entertain, hear, or determine any proceeding commenced by any other person. However, the court may consider the application for receivership of a person other than the director or his designee if the applicant for receivership has proceeded as follows:
(1) The applicant for receivership, before presenting his complaint or petition to the court for action thereon, presents a copy thereof to the department for action thereon, as hereinafter set forth, and gives reasonable notice to the insurance company to be affected that a copy has been lodged with the department.
(2) The insurance company affected thereby has ten days after the service of the notice within which to lodge with the department a copy of the answer which it proposes to file, and thereupon the director or his designee shall proceed to investigate and within a reasonable time determine the merits of the application for receivership and shall fix a time for the hearing of the investigation of the matters involved in the petition or complaint.
(3) The director or his designee, after completing the investigation, shall recommend to the court that the receiver be or not be appointed. The court shall then consider the application for a receiver.
(b) No court of this State has jurisdiction to entertain, hear, or determine any complaint praying for the dissolution, liquidation, rehabilitation, sequestration, conservation, or receivership of an insurer or praying for an injunction or restraining order or other relief preliminary to, incidental to, or relating to the proceedings other than in accordance with this chapter.
(c) Whenever the director or his designee finds that any of the grounds for rehabilitation or liquidation of a domestic or alien insurance company as set forth in Sections 38-27-310 and 38-27-360 exists, he may apply to the Circuit Court for an order directing the company to show cause by a designated date why a receiver should not be appointed for the company or why an order should not be entered authorizing the department to proceed with the delinquency proceedings of the company or to take any other appropriate steps authorized in this chapter. The application and order may include any other relief the nature of the case and the interests of the policyholders, creditors, stockholders, and members of the company and of the public may require. A copy of the application and the order to show cause must be served upon the company by registered or certified mail and constitutes legal process in lieu of any summons or process otherwise provided by law.
(d) In addition to other grounds for jurisdiction provided by the law of this State, a court of this State having jurisdiction of the subject matter in an action brought by the receiver of a domestic insurer or an alien insurer domiciled in this State has jurisdiction over a person served with process by registered or certified mail:
(1) if the person served is obligated to the insurer in any way as an incident to any agency or brokerage arrangement that may exist or has existed between the insurer and the agent or broker, in any action on or incident to the obligation;
(2) if the person served is a reinsurer who has at any time written a policy of reinsurance for an insurer against which a rehabilitation or liquidation order is in effect when the action is commenced, or is an agent or broker of or for the reinsurer, in any action on or incident to the reinsurance contract; or
(3) if the person served is or has been an officer, manager, trustee, organizer, promoter, or person in a position of comparable authority or influence in an insurer against which a rehabilitation or liquidation order is in effect when the action is commenced, in any action resulting from such a relationship with the insurer.
(e) If the court on motion of any party finds that any action should as a matter of substantial justice be tried in a forum outside this State, the court may enter an appropriate order to stay further proceedings on the action in this State.
(f) All actions herein authorized shall be brought in the Court of Common Pleas for Richland County.
Section 38-27-70. (a) Any receiver appointed in a proceeding under this chapter may at any time apply for, and any court of general jurisdiction may grant, restraining orders, preliminary and permanent injunctions, and other orders considered necessary and proper to prevent:
(1) the transaction of further business;
(2) the transfer of property;
(3) interference with the receiver or with a proceeding under this chapter;
(4) waste of the insurer's assets;
(5) dissipation and transfer of bank accounts;
(6) the institution or further prosecution of any actions or proceedings;
(7) the obtaining of preferences, judgments, attachments, garnishments, or liens against the insurer, its assets, or its policyholders;
(8) the levying of execution against the insurer, its assets, or its policyholders;
(9) the making of any sale or deed for nonpayment of taxes or assessments that would lessen the value of the assets of the insurer;
(10) the withholding from the receiver of books, accounts, documents, or other records relating to the business of the insurer; or
(11) any other threatened or contemplated action that might lessen the value of the insurer's assets or prejudice the rights of policyholders, creditors, or shareholders, or the administration of any proceeding under this chapter.
(b) The receiver may apply to any court outside of the state for the relief described in subsection (a).
Section 38-27-80. (a) Any officer, manager, director, trustee, owner, employee, or agent of any insurer or any other person with authority over or in charge of any segment of the insurer's affairs must cooperate with the director or his designee in any proceeding under this chapter or any investigation preliminary to the proceeding. The term `person' as used in this section includes any person who exercises control directly or indirectly over activities of the insurer through any holding company or other affiliate of the insurer. `To cooperate' includes, but is not limited to:
(1) To reply promptly in writing to any inquiry from the director or his designee requesting a reply.
(2) To make available to the director or his designee any books, accounts, documents, or other records or information or property of or pertaining to the insurer and in his possession, custody, or control. (b) No person may obstruct or interfere with the director or his designee in the conduct of any delinquency proceeding or any investigation preliminary or incidental thereto.
(c) This section may not be construed to abridge otherwise existing legal rights, including the right to resist a petition for liquidation or other delinquency proceedings, or other orders.
(d) Any person included within subsection (a) who fails to cooperate with the director or his designee, or any person who obstructs or interferes with the director or his designee in the conduct of any delinquency proceeding or any investigation preliminary or incidental thereto, or who violates any valid order the director or his designee issues under this chapter may:
(1) upon conviction, be sentenced to pay a fine not exceeding ten thousand dollars or to undergo imprisonment for a term of not more than one year, or both, or
(2) after a hearing, be subject to the imposition by the director or his designee of a civil penalty not to exceed ten thousand dollars and be subject further to the revocation or suspension of any insurance licenses issued by the director or his designee.
Section 38-27-90. In any proceeding under this chapter, the director and his designee(s) are responsible on their official bonds for the faithful performance of their duties. If the court considers it desirable for the protection of the assets, it may at any time require an additional bond from the director or his designee(s). These bonds must be paid for out of the assets of the insurer as a cost of administration.
Section 38-27-100. An insurance proceeding under this chapter begun before the effective date of the `Insurers Rehabilitation and Liquidation Act' is deemed to have begun after that date for the purpose of conducting the proceeding. However, in the discretion of the director or his designee, the proceeding may be continued, in whole or in part, as it would have been if this act was not in effect.
Section 38-27-110. Until payments of or on account of an insurer's contractual obligations by a guaranty association, including expenses and interest, are repaid to the guaranty association or a plan of repayment by the insurer is approved by the guaranty association, no insurer that is subject to a delinquency proceeding, whether formal or informal, administrative or judicial, may:
(1) be released from the proceeding unless it is converted into a judicial rehabilitation or liquidation proceeding;
(2) be permitted to solicit or accept new business or request or accept the restoration of a suspended or revoked license or certificate of authority;
(3) be returned to the control of its shareholders or private management; or
(4) have its assets returned to the control of its shareholders or private management."
Name changed; etc.
SECTION 610. Article 3, Chapter 27, Title 38 of the 1976 Code is amended to read:
"Article 3
Summary Provisions
Section 38-27-220. (a) The director or his designee may file in the Circuit Court a petition alleging, with respect to a domestic insurer:
(1) that grounds exist that would justify a court order for a formal delinquency proceeding against an insurer under this chapter;
(2) that the interests of policyholders, creditors, or the public will be endangered by delay; and
(3) the contents of an order considered necessary by the director or his designee.
(b) Upon a filing under subsection (a), the court may issue forthwith, ex parte and without a hearing, the requested order which shall direct the department to take possession and control of all or a part of the property, books, accounts, documents, and other records of an insurer and of the premises occupied by it for transaction of its business and, until further order of the court, shall enjoin the insurer and its officers, managers, agents, and employees from disposition of its property and from transaction of its business except with the written consent of the director or his designee.
(c) The court shall specify in the order what its duration is, which must be the time the court considers necessary for the department to ascertain the condition of the insurer. On motion of either party or on its own motion, the court may hold any hearings it considers desirable after notice it considers appropriate and may extend, shorten, or modify the terms of the seizure order. The court shall vacate the seizure order if the department fails to commence a formal proceeding under this chapter after having had a reasonable opportunity to do so. An order of the court pursuant to a formal proceeding under this chapter ipso facto vacates the seizure order.
(d) Entry of a seizure order under this section does not constitute an anticipatory breach of any contract of the insurer.
(e) An insurer subject to an ex parte order under this section may petition the court at any time after the issuance of the order for a hearing and review of the order. The court shall hold the hearing and review not more than fifteen days after the request. A hearing under this subsection may be held privately in chambers and it must be so held if the insurer proceeded against so requests.
(f) If, at any time after the issuance of a seizure order, it appears to the court that any person whose interest is or will be substantially affected by the order did not appear at the hearing and has not been served, the court may order that notice be given. An order that notice be given does not stay the effect of any order previously issued by the court.
Section 38-27-230. In proceedings and judicial reviews under Section 38-27-220, records of the insurer, other documents, insurance department files, and court records and papers, so far as they pertain to or are a part of the record of the proceedings, are and must remain confidential except as is necessary to obtain compliance, unless the Circuit Court, after hearing arguments from the parties in chambers, orders otherwise, or unless the insurer requests that the matter be made public. Until a court order, papers filed with the clerk of the Circuit Court must be held by him in a confidential file."
Name changed; etc.
SECTION 611. Section 38-27-310 of the 1976 Code is amended to read:
"Section 38-27-310. The director or his designee may apply by petition to the Circuit Court for an order authorizing him to rehabilitate a domestic insurer or an alien insurer domiciled in this State on any one or more of the following grounds:
(1) The insurer is in a condition in which the further transaction of business would be hazardous, financially, to its policyholders, creditors, or the public.
(2) There is reasonable cause to believe that there has been embezzlement from the insurer, wrongful sequestration or diversion of the insurer's assets, forgery or fraud affecting the insurer, or other illegal conduct in, by, or with respect to the insurer that if established would endanger assets in an amount threatening the solvency of the insurer.
(3) The insurer has failed to remove any person who in fact has executive authority in the insurer, whether an officer, manager, general agent, employee, or other person, if the person has been found after notice and hearing by the director or his designee to be dishonest or untrustworthy in a way affecting the insurer's business.
(4) Control of the insurer, whether by stock ownership or otherwise, and whether direct or indirect, is in a person or persons found after notice and hearing to be untrustworthy.
(5) Any person who in fact has executive authority in the insurer, whether an officer, manager, general agent, director or trustee, employee, or other person, has refused to be examined under oath by the director or his designee concerning its affairs, whether in this State or elsewhere, and, after reasonable notice of the fact, the insurer has failed promptly and effectively to terminate the employment and status of the person and all his influence on management.
(6) After demand by the director or his designee under Section 38-13-20 or 38-13-120 or under this chapter, the insurer has failed to make available promptly for examination any of its own property, books, accounts, documents, or other records, or those of any subsidiary or related company within the control of the insurer, or those of any person having executive authority in the insurer so far as they pertain to the insurer.
(7) Without first obtaining the written consent of the director or his designee, the insurer has transferred, or attempted to transfer, substantially its entire property or business or has entered into any transaction the effect of which is to merge, consolidate, or reinsure substantially its entire property or business in or with the property or business of any other person.
(8) The insurer or its property has been or is the subject of an application for the appointment of a receiver, trustee, custodian, conservator, or sequestrator or similar fiduciary of the insurer or its property otherwise than as authorized under the insurance laws of this State and the appointment has been made or is imminent and the appointment might oust the courts of this State of jurisdiction or might prejudice orderly delinquency proceedings under this chapter.
(9) Within the previous three years the insurer wilfully has violated its charter, articles of incorporation, or bylaws, an insurance law of this State, or an order of the director or his designee.
(10) The insurer has failed to pay within sixty days after due date any obligation to any state or any subdivision thereof or any judgment entered in any state, if the court in which the judgment was entered had jurisdiction over the subject matter, except that the nonpayment may not be a ground until sixty days after any good faith effort by the insurer to contest the obligation has been terminated, whether it is before the director or his designee or in the courts, or the insurer has systematically attempted to compromise or renegotiate previously agreed settlements with its creditors on the ground that it is financially unable to pay its obligations in full.
(11) The insurer has failed to file its annual report or other financial report required by statute within the time allowed by law and, after written demand by the director or his designee, has failed to give an adequate explanation immediately.
(12) The board of directors or the holders of a majority of the shares entitled to vote request or consent to rehabilitation under this chapter."
Name changed; etc.
SECTION 612. Section 38-27-320 of the 1976 Code is amended to read:
"Section 38-27-320. (a) An order to rehabilitate the business of a domestic insurer or an alien insurer domiciled in this State shall appoint the director, and his successors in office, or his designee the rehabilitator and shall direct the rehabilitator to take possession immediately of the assets of the insurer and to administer them under the general supervision of the court. The filing or recording of the order with the clerk of court or register of mesne conveyances of the county in which the principal business of the company is conducted or the county in which its principal office or place of business is located imparts the same notice which a deed, bill of sale, or other evidence of title duly filed or recorded with that office would have imparted. The order to rehabilitate the insurer shall by operation of law vest title to all assets of the insurer in the rehabilitator.
(b) Any order issued under this section shall require accounting to the court by the rehabilitator. Accountings must be at intervals as the court specifies in its order.
(c) Entry of an order of rehabilitation does not constitute an anticipatory breach of any contracts of the insurer."
Name changed; language deleted; etc.
SECTION 613. Section 38-27-330(a) of the 1976 Code is amended to read:
"(a) The director may appoint one or more special deputies who have all the powers and responsibilities of the rehabilitator granted under this section to assist the director or his designee as rehabilitator, and the director may employ any counsel, clerks, and assistants considered necessary. The compensation of the special deputy, counsel, clerks, and assistants and all expenses of taking possession of the insurer and of conducting the proceedings must be fixed by the director with the court's approval and must be paid out of the funds or assets of the insurer. The persons appointed under this section shall serve at the director's pleasure. In the event that the property of the insurer does not contain sufficient cash or liquid assets to defray the costs incurred, the director may advance the costs so incurred out of any appropriation for the maintenance of the insurance department. Any amounts so advanced for expenses of administration must be repaid to the director for the use of the insurance department out of the first available monies of the insurer."
Name changed
SECTION 614. Section 38-27-350 of the 1976 Code is amended to read:
"Section 38-27-350. (a) Whenever the director or his designee believes further attempts to rehabilitate an insurer would substantially increase the risk of loss to creditors, policyholders, or the public or would be futile, the director or his designee may petition the Circuit Court for an order of liquidation. A petition under this subsection has the same effect as a petition under Section 38-27-360. The Circuit Court shall permit the directors of the insurer to take actions reasonably necessary to defend against the petition and may order payment from the estate of the insurer of costs and other expenses of defense as justice requires.
(b) The rehabilitator may at any time petition the Circuit Court for an order terminating rehabilitation of an insurer. The court shall also permit the directors of the insurer to petition the court for an order terminating rehabilitation of the insurer and may order payment from the estate of the insurer of costs and other expenses of the petition as justice requires. If the Circuit Court finds that rehabilitation has been accomplished and that grounds for rehabilitation under Section 38-27-310 no longer exist, it shall order that the insurer be restored to possession of its property and the control of its business. The Circuit Court may also make that finding and issue that order at any time upon its own motion."
Name changed
SECTION 615. Section 38-27-360 of the 1976 Code is amended to read:
"Section 38-27-360. The director or his designee may petition the Circuit Court as provided by law for an order directing him to liquidate a domestic insurer or an alien insurer domiciled in this State on the basis:
(1) of any ground for an order of rehabilitation as specified in Section 38-27-310, whether or not there has been a prior order directing the rehabilitation of the insurer;
(2) that the insurer is insolvent; or
(3) that the insurer is in such a condition that the further transaction of business would be hazardous, financially or otherwise, to its policyholders, its creditors, or the public."
Name changed; etc.
SECTION 616. Section 38-27-370 of the 1976 Code is amended to read:
"Section 38-27-370. (A) An order to liquidate the business of a domestic insurer must appoint the director and his successors in office, or his designee, as liquidator and direct the liquidator immediately to take possession of the assets of the insurer and to administer them under the general supervision of the court. The liquidator is vested by operation of law with the title to the property, contracts, and rights of action and the books and records of the insurer ordered liquidated, wherever located, as of the entry of the final order of liquidation. The filing or recording of the order with the clerk of court or the register of mesne conveyances of the county in which its principal office or place of business is located or, for real estate, with the clerk of court and the register of mesne conveyances of the county where the property is located imparts the same notice which a deed, bill of sale, or other evidence of title filed or recorded with that office would have imparted.
(B) Upon issuance of the order, the rights and liabilities of the insurer and its creditors, policyholders, shareholders, members, and other persons interested in its estate become fixed as of the date of entry of the order of liquidation, except as provided in Sections 38-27-380 and 38-27-560.
(C) An order to liquidate the business of an alien insurer domiciled in this State must be in the same terms and has the same legal effect as an order to liquidate a domestic insurer, except that the assets and the business in the United States are the only assets and business included.
(D) At the time of petitioning for an order of liquidation, or after that time, the director or his designee, after making appropriate findings of an insurer's insolvency, may petition the court for a judicial declaration of insolvency. After providing notice and hearing it considers proper the court may make the declaration.
(E) An order issued under this section must require accounting to the court by the liquidator. Accountings must be at intervals the court specifies in its order.
(F) (1) Within five days of the effective date of this subsection or within five days after the initiation of an appeal of an order of liquidation, which order has not been stayed, the director or his designee shall present for the court's approval a plan for the continued performance of the defendant company's policy claims obligations, including the duty to defend insureds under liability insurance policies during the pendency of an appeal. The plan must provide for the continued performance and payment of policy claims obligations in the normal course of events notwithstanding the grounds alleged in support of the order of liquidation including the ground of insolvency. If the defendant company's financial condition, in the judgment of the director or his designee, does not support the full performance of policy claims obligations during the appeal pendency period, the plan may prefer the claims of certain policyholders and claimants over creditors and interested parties as well as other policyholders and claimants as the director or his designee finds to be fair and equitable considering the relative circumstances of the policyholders and claimants. The court shall examine the plan submitted by the director or his designee and if it finds the plan to be in the best interests of the parties, the court shall approve the plan. No action may lie against the director, or his deputies, designees, agents, clerks, assistants, or attorneys based on preference in an appeal pendency plan approved by the court.
(2) The appeal pendency plan may not supersede or affect the obligations of an insurance guaranty association. An appeal pendency plan must provide for equitable adjustments to be made by the liquidator to distributions of assets to guaranty associations, if the liquidator pays claims from assets of the estate, which otherwise would be the obligations of a guaranty association but for the appeal of the order of liquidation, so that guaranty associations equally benefit on a pro rata basis from the assets of the estate. If an order of liquidation is set aside upon appeal, the company must not be released from delinquency proceedings unless funds advanced by a guaranty association, including reasonable administrative expenses relating to obligations of the company, are repaid in full, together with interest at the judgment rate of interest or unless an arrangement for repayment has been made with the consent of applicable guaranty associations."
Name changed
SECTION 617. Section 38-27-390 of the 1976 Code is amended to read:
"Section 38-27-390. The director or his designee may petition for an order dissolving the corporate existence of a domestic insurer or the United States branch of an alien insurer domiciled in this State at the time he applies for a liquidation order. The court as provided by law shall order dissolution of the corporation upon petition by the director or his designee upon or after the granting of a liquidation order. If the dissolution has not previously been ordered, it must be effected by operation of law upon the discharge of the liquidator if the insurer is insolvent but may be ordered by the court upon the discharge of the liquidator if the insurer is under a liquidation order for some other reason."
Name changed
SECTION 618. Section 38-27-400 of the 1976 Code is amended to read:
"Section 38-27-400. (a) The liquidator has the power:
(1) To appoint a special deputy to act for him under this chapter and to determine the special deputy's reasonable compensation. The special deputy has all powers of the liquidator granted by this section. The special deputy serves at the pleasure of the liquidator.
(2) To employ employees and agents, legal counsel, actuaries, accountants, appraisers, consultants, and other personnel he considers necessary to assist in the liquidation.
(3) To fix the reasonable compensation of employees and agents, legal counsel, actuaries, accountants, appraisers, and consultants with the court's approval.
(4) To pay reasonable compensation to persons appointed and to defray from the funds or assets of the insurer all expenses of taking possession of, conserving, conducting, liquidating, disposing of, or otherwise dealing with the business and property of the insurer. In the event that the property of the insurer does not contain sufficient cash or liquid assets to defray the costs incurred, the director may advance the costs so incurred out of any appropriation for the maintenance of the insurance department. Any amounts so advanced for expenses of administration must be repaid to the director for the use of the insurance department out of the first available monies of the insurer.
(5) To hold hearings, to subpoena witnesses to compel their attendance, to administer oaths, to examine any person under oath, and to compel any person to subscribe to his testimony after it has been correctly reduced to writing and, in connection therewith, to require the production of any books, papers, records, or other documents which he considers relevant to the inquiry.
(6) To collect all debts and monies due and claims belonging to the insurer, wherever located, and, for this purpose:
(i) To institute timely action in other jurisdictions in order to forestall garnishment and attachment proceedings against the debts.
(ii) To do other acts necessary or expedient to collect, conserve, or protect its assets or property, including the power to sell, compound, compromise, or assign debts for purposes of collection upon terms and conditions he considers best.
(iii) To pursue any creditor's remedies available to enforce his claims.
(7) To conduct public and private sales of the property of the insurer.
(8) To use assets of the estate of an insurer under a liquidation order to transfer policy obligations to a solvent assuming insurer, if the transfer can be arranged without prejudice to applicable priorities under Section 38-27-610.
(9) To acquire, hypothecate, encumber, lease, improve, sell, transfer, abandon, or otherwise dispose of or deal with any property of the insurer at its market value or upon terms and conditions that are fair and reasonable. He also has power to execute, acknowledge, and deliver any and all deeds, assignments, releases, and other instruments necessary or proper to effectuate any sale of property or other transaction in connection with the liquidation.
(10) To borrow money on the security of the insurer's assets or without security and to execute and deliver all documents necessary to that transaction for the purpose of facilitating the liquidation.
(11) To enter into contracts necessary to carry out the order to liquidate, and to affirm or disavow any contracts to which the insurer is a party.
(12) To continue to prosecute and to institute in the name of the insurer or in his own name any and all suits and other legal proceedings, in this State or elsewhere, and to abandon the prosecution of claims he considers unprofitable to pursue further. If the insurer is dissolved under Section 38-27-390, he has the power to apply to any court in this State or elsewhere for leave to substitute himself for the insurer as plaintiff.
(13) To prosecute any action which may exist in behalf of the creditors, members, policyholders, or shareholders of the insurer against any officer of the insurer or any other person.
(14) To remove any or all records and property of the insurer to the offices of the department or to any other place convenient for the purposes of efficient and orderly execution of the liquidation. Guaranty associations and foreign guaranty associations shall have such reasonable access to the records of the insurer as is necessary for them to carry out their statutory obligations.
(15) To deposit in one or more banks in this State sums required for meeting current administration expenses and dividend distributions.
(16) To invest all sums not currently needed, unless the court orders otherwise.
(17) To file any necessary documents for recording in the office of any recorder of deeds or record office in this State or elsewhere where property of the insurer is located.
(18) To assert all defenses available to the insurer as against third persons, including statutes of limitation, statutes of fraud, and the defense of usury. A waiver of any defense by the insurer after a petition in liquidation has been filed does not bind the liquidator. Whenever a guaranty association or foreign guaranty association has an obligation to defend any suit, the liquidator shall give precedence to that obligation and may defend only in the absence of a defense by the guaranty associations.
(19) To exercise and enforce all the rights, remedies, and powers of any creditor, shareholder, policyholder, or member, including any power to avoid any transfer or lien that may be given by the general law and that is not included with Sections 38-27-450 through 38-27-470.
(20) To intervene in any proceeding wherever instituted that might lead to the appointment of a receiver or trustee and to act as the receiver or trustee whenever the appointment is offered.
(21) To enter into agreements with any receiver or commissioner of any other state relating to the rehabilitation, liquidation, conservation, or dissolution of an insurer doing business in both states.
(22) To exercise all powers now held or hereafter conferred upon receivers by the laws of this State not inconsistent with this chapter.
(23) To audit the books and records of agents of the insurer insofar as those records relate to the business activities of the insurer.
(24) Notwithstanding the powers of the liquidator in subsections (a) and (b), the liquidator is not obligated to defend claims or to continue to defend claims after the entry of a liquidation order.
(b) The enumeration, in this section, of the powers and authority of the liquidator may not be construed as a limitation upon him; nor shall it exclude in any manner his right to do other acts not herein specifically enumerated, or otherwise provided for, that may be necessary or appropriate for the accomplishment of or in aid of the purpose of liquidation."
Name changed
SECTION 619. Section 38-27-410 of the 1976 Code is amended to read:
"Section 38-27-410. (a) Unless the court otherwise directs, the liquidator shall give or cause to be given notice of the liquidation order as soon as possible:
(1) By first class mail and either by telegram or telephone to the director of the department of insurance of each jurisdiction in which the insurer is doing business.
(2) By first class mail to any guaranty association or foreign guaranty association which is or may become obligated as a result of the liquidation.
(3) By first class mail to all insurance agents of the insurer.
(4) By first class mail to all persons known or reasonably expected to have claims against the insurer, including all policyholders, at their last known addresses as indicated by the records of the insurer.
(5) By publication in a newspaper of general circulation in the county in which the insurer has its principal place of business and in any other locations the liquidator considers appropriate.
(b) Notice to potential claimants under subsection (a) requires claimants to file with the liquidator their claims together with proper proofs thereof under Section 38-27-550 by a date the liquidator specifies in the notice. The liquidator need not require persons claiming cash surrender values or other investment values in life insurance and annuities to file a claim. All claimants have a duty to keep the liquidator informed of any changes of address.
(c) If notice is given in accordance with this section, the distribution of assets of the insurer under this chapter is conclusive with respect to all claimants, whether or not they received notice."
Name changed
SECTION 620. Section 38-27-500(e) of the 1976 Code is amended to read:
"(e)(1) If a member does not appear and serve duly verified objections upon the liquidator by the return day of the order to show cause under subsection (c), the court shall make an order adjudging the member liable for the amount of the assessment against him, pursuant to subsection (c), together with costs, and the liquidator shall have a judgment against the member therefor.
(2) If by the return day the member appears and serves duly verified objections upon the liquidator, the director or his designee may hear and determine the matter or may appoint a referee to hear it and make an order as the facts warrant. In the event that the director or his designee determines that the objections do not warrant relief from assessment, the member may request the court to review the matter and vacate the order to show cause."
Name changed; language deleted; reference to Administrative Law Judge Division
SECTION 621. Section 38-27-520 of the 1976 Code is amended to read:
"Section 38-27-520. (a)(1) An agent, broker, premium finance company, or any other person, other than the insured, responsible for the payment of a premium is obligated to pay any unpaid premium for the full policy term due the insurer at the time of the declaration of insolvency, whether earned or unearned, as shown on the records of the insurer. The liquidator has the right to recover from that person any part of an unearned premium that represents that person's commission. Credits or setoffs or both are not allowed to an agent, broker, or premium finance company for any amounts advanced to the insurer by the agent, broker, or premium finance company on behalf of, but in the absence of a payment by, the insured.
(2) An insured is obligated to pay any unpaid earned premium due the insurer at the time of the declaration of insolvency, as shown on the records of the insurer.
(b) Upon satisfactory evidence of a violation of this section, the director or his designee may pursue either one or both of the following courses of action:
(1) Suspend or revoke or refuse to renew the licenses of the offending party or parties.
(2) Impose a penalty of not more than one thousand dollars for each and every act in violation of this section by the party or parties.
(c) Before the director or his designee takes any action as set forth in subsection (b), he shall give written notice to the person, company, association, or exchange accused of violating the law, stating specifically the nature of the alleged violation and advising of an opportunity of hearing to be held at least ten days thereafter. After the hearing, upon failure of the accused to appear at the hearing, or upon failure to request the hearing, the director or his designee, if he finds a violation, shall impose the penalties under subsection (b) he considers advisable.
(d) When the director or his designee takes action in any or all of the ways set out in subsection (b), the party aggrieved may appeal from the action to the Administrative Law Judge Division as provided by law."
Name changed
SECTION 622. Section 38-27-640 of the 1976 Code is amended to read:
"Section 38-27-640. (a) All unclaimed funds subject to distribution remaining in the liquidator's hands when he is ready to apply to the court for discharge, including the amount distributable to any creditor, shareholder, member, or other person who is unknown or cannot be found, must be deposited with the State Treasurer and must be paid without interest except in accordance with Section 38-27-610 to the person entitled thereto or his legal representative upon proof satisfactory to the State Treasurer of his right thereto. Unclaimed funds deposited with the State Treasurer in accordance with this section must be advertised and disposed of in accordance with the provisions of Section 27-19-220.
(b) All funds withheld under Section 38-27-560 and not distributed must, upon discharge of the liquidator, be deposited with the State Treasurer and paid by him in accordance with Section 38-27-610. Any sums remaining which under Section 38-27-610 would revert to the undistributed assets of the insurer must be transferred to the State Treasurer and become the property of the state under subsection (a) of this section unless the director or his designee in his discretion petitions the court to reopen the liquidation under Section 38-27-660."
Name changed
SECTION 623. Section 38-27-660 of the 1976 Code is amended to read:
"Section 38-27-660. After the liquidation proceeding has been terminated and the liquidator discharged, the director or his designee or other interested party may at any time petition the Circuit Court to reopen the proceedings for good cause, including the discovery of additional assets. If the court is satisfied that there is justification for reopening, it must so order."
Name changed
SECTION 624. Section 38-27-670 of the 1976 Code is amended to read:
"Section 38-27-670. Whenever it appears to the director or his designee that the records of any insurer in process of liquidation or completely liquidated are no longer useful, he may recommend to the court, and the court shall direct, what records should be retained for future reference and what should be destroyed."
Name changed
SECTION 625. Section 38-27-680 of the 1976 Code is amended to read:
"Section 38-27-680. The Circuit Court may, as it considers desirable, cause audits to be made of the books of the director or his designee relating to any receivership established under this chapter, and a report of each audit must be filed with the department and with the court. The books, records, and other documents of the receivership must be made available to the auditor at any time without notice. The expense of each audit is considered a cost of administration of the receivership."
Name changed
SECTION 626. Section 38-27-910(a) of the 1976 Code is amended to read:
"(a) If a domiciliary liquidator has not been appointed, the director or his designee may apply to the Circuit Court by verified petition for an order directing him to act as conservator to conserve the property of an alien insurer not domiciled in this State or a foreign insurer on any one or more of the following grounds:
(1) Any of the grounds in Section 38-27-310.
(2) That any of its property has been sequestered by official action in its domiciliary state or in any other state.
(3) That enough of its property has been sequestered in a foreign country to give reasonable cause to fear that the insurer is or may become insolvent.
(4)(i) That its certificate of authority to do business in this State has been revoked or that none was ever issued; and
(ii) That there are residents of this State with outstanding claims or outstanding policies."
Name changed
SECTION 627. Section 38-27-920 of the 1976 Code is amended to read:
"Section 38-27-920. (a) If no domiciliary receiver has been appointed, the director or his designee may apply to the Circuit Court by verified petition for an order directing him to liquidate the assets found in this State of a foreign insurer or an alien insurer not domiciled in this State, on any of the following grounds:
(1) any of the grounds in Section 38-27-310 or 38-27-360; or
(2) any of the grounds specified in items (2) through (4) of subsection (a) of Section 38-27-910.
(b) When an order is sought under subsection (a) of this section, the court shall cause the insurer to be given reasonable notice and time to respond.
(c) If it appears to the court that the best interests of creditors, policyholders, and the public require, the court may issue an order to liquidate in whatever terms it considers appropriate. The filing or recording of the order with the clerk of court or the register of mesne conveyances of the county in which the principal business of the company is located or the county in which its principal office or place of business is located imparts the same notice which a deed, bill of sale, or other evidence of title duly filed or recorded with that office would have imparted.
(d) If a domiciliary liquidator is appointed in a reciprocal state while a liquidation is proceeding under this section, the liquidator under this section must thereafter act as ancillary receiver under Section 38-27-940. If a domiciliary liquidator is appointed in a nonreciprocal state while a liquidation is proceeding under this section, the liquidator under this section may petition the court for permission to act as ancillary receiver under Section 38-27-940.
(e) On the same grounds as are specified in subsection (a) of this section, the director or his designee may petition any appropriate federal district court to be appointed receiver to liquidate that portion of the insurer's assets and business over which the court will exercise jurisdiction or any lesser part thereof that the director or his designee considers desirable for the protection of the policyholders and creditors in this State. (f) The court may order the director or his designee, when he has liquidated the assets of a foreign or alien insurer under this section, to pay claims of residents of this State against the insurer under such rules as to the liquidation of insurers under this chapter as are otherwise compatible with the provisions of this section."
Name changed; etc.
SECTION 628. Section 38-27-930(b) of the 1976 Code is amended to read:
"(b) If a domiciliary liquidator is appointed for an insurer not domiciled in a reciprocal state, the director of this State or his designee is vested by operation of law with the title to all of the property, contracts and rights of action, and all of the books, accounts, and other records of the insurer located in this State, at the same time that the domiciliary liquidator is vested with title in the domicile. The director of this State or his designee may petition for a conservation or liquidation order under Section 38-27-910 or 38-27-920, or for an ancillary receivership under Section 38-27-940 or, after approval by the Circuit Court, may transfer title to the domiciliary liquidator, as the interests of justice and the equitable distribution of the assets require."
Name changed
SECTION 629. Section 38-27-940(a) of the 1976 Code is amended to read:
"(a) If a domiciliary liquidator has been appointed for an insurer not domiciled in this State, the director or his designee may file a petition with the Circuit Court requesting appointment as ancillary receiver in this State:
(1) If he finds that there are sufficient assets of the insurer located in this State to justify the appointment of an ancillary receiver.
(2) If the protection of creditors or policyholders in this State so requires."
Name changed
SECTION 630. Section 38-27-950 of the 1976 Code is amended to read:
"Section 38-27-950. The director or his designee in his sole discretion may institute proceedings under Sections 38-27-220 and 38-27-230 at the request of the commissioner or other appropriate insurance official of the domiciliary state of a foreign or an alien insurer having property located in this State."
Name changed
SECTION 631. Chapter 29, Title 38 of the 1976 Code is amended to read:
"CHAPTER 29
South Carolina Life and Accident and Health
Insurance Guaranty Association
Section 38-29-10. This chapter is known and may be cited as the `South Carolina Life and Accident and Health Insurance Guaranty Association Act'.
Section 38-29-20. As used in this chapter:
(1) `Account' means any of the three accounts created under Section 38-29-50.
(2) `Association' means the South Carolina Life and Accident and Health Insurance Guaranty Association created under Section 38-29-50.
(3) `Contractual obligation' means any obligation under covered policies.
(4) `Covered policy' means any policy or contract within the scope of Section 38-29-40.
(5) `Impaired insurer' means:
(a) an insurer which becomes insolvent and is placed under a final order of liquidation, rehabilitation, or conservation by a court of competent jurisdiction, or
(b) an insurer considered by the director or his designee to be unable or potentially unable to fulfill its contractual obligations.
(6) `Member insurer' means any person authorized to transact in this State any kind of insurance to which this chapter applies under Section 38-29-40.
(7) `Premiums' means direct gross insurance premiums and annuity considerations collected or written on covered policies, less return premiums and considerations thereon and dividends paid or credited to policyholders on the direct business. `Premiums' does not include premiums and considerations on contracts between insurers and reinsurers. As used in Section 38-29-80, `premiums' means those for the calendar year preceding the determination of impairment.
(8) `Resident' means any person who resides in this State at the time the impairment is determined and to whom contractual obligations are owed.
Section 38-29-30. The purpose of this chapter is to maintain public confidence in the promises of insurers by providing a mechanism for protecting policy owners, insureds, beneficiaries, annuitants, payees, and assignees of life insurance policies, accident and health insurance policies, annuity contracts, and supplemental contracts against failure in the performance of contractual obligations due to the impairment of the insurer issuing these policies or contracts. To provide this protection:
(1) an association of insurers is created to enable the guaranty of payment of benefits and of continuation of coverages;
(2) members of the association are subject to assessment to provide funds to carry out the purpose of this chapter; and
(3) the association is authorized to assist the director, his designee, and the department, in the prescribed manner, in the detection and prevention of insurer impairments.
Section 38-29-40. (1) This chapter applies to direct life insurance policies, accident and health insurance policies, annuity contracts, and contracts supplemental to life and accident and health insurance policies and annuity contracts issued by persons authorized to transact insurance in this State at any time.
(2) This chapter does not apply to:
(a) Any policy or contract or part thereof under which the risk is borne by the policyholder.
(b) Any policy or contract or part thereof assumed by the impaired insurer under a contract of reinsurance, other than reinsurance for which assumption certificates have been issued.
(c) Any policy or contract issued by assessment mutuals, fraternals, and nonprofit hospital and medical service plans.
Section 38-29-50. (1) There is created a nonprofit legal entity to be known as the South Carolina Life and Accident and Health Insurance Guaranty Association. All member insurers are and must remain members of the association as a condition of their authority to transact insurance in this State. The association shall perform its functions under the plan of operation established and approved under Section 38-29-90 and shall exercise its powers through a board of directors established under Section 38-29-60. For purposes of administration and assessment, the association shall maintain three accounts:
(a) the accident and health insurance account;
(b) the life insurance account; and
(c) the annuity account.
(2) The association is under the immediate supervision of the department and is subject to the applicable insurance laws of this State.
Section 38-29-60. (1) The board of directors of the association shall consist of not less than five nor more than nine members serving terms as established in the plan of operation. Member insurers shall select the members of the board subject to the director's approval. Any vacancies on the board must be filled for the remaining period of the term in the manner described in the plan of operation.
(2) In approving selections or in appointing members to the board, the director shall consider, among other things, whether all member insurers are fairly represented.
(3) Members of the board may be reimbursed from the assets of the association for expenses incurred by them as members of the board of directors, but members of the board may not otherwise be compensated by the association for their services.
Section 38-29-70. In addition to the powers and duties enumerated in other sections of this chapter:
(1) If a domestic insurer is an impaired insurer, the association may, prior to an order of liquidation or rehabilitation and subject to any conditions imposed by the association other than those which impair the contractual obligations of the impaired insurer and approved by the impaired insurer and the director or his designee:
(a) Guarantee or reinsure, or cause to be guaranteed, assumed, or reinsured, all the covered policies of the impaired insurer.
(b) Provide monies, pledges, notes, guarantees, or other means as are proper to effectuate paragraph (a) of this item (1) and assure payment of the impaired insurer's contractual obligations pending action under paragraph (a) of this item (1).
(c) Loan money to the impaired insurer.
(2) If a foreign or alien insurer is an impaired insurer, the association may prior to an order of liquidation, rehabilitation, or conservation, with respect to the covered policies of residents and subject to any conditions imposed by the association other than those which impair the contractual obligations of the impaired insurer and approved by the impaired insurer and the director or his designee:
(a) Guarantee or reinsure, or cause to be guaranteed, assumed, or reinsured, the impaired insurer's covered policies of residents.
(b) Provide monies, pledges, notes, guarantees, or other means as are proper to effectuate paragraph (a) of this item (2) and assure payment of the impaired insurer's contractual obligations to residents pending action under paragraph (a) of this item (2).
(c) Loan money to the impaired insurer.
(3) If a domestic insurer is an impaired insurer under an order of liquidation or rehabilitation, the association shall, subject to the approval of the director or his designee:
(a) Guarantee, assume, or reinsure, or cause to be guaranteed, assumed, or reinsured, the impaired insurer's covered policies.
(b) Assure payment of the impaired insurer's contractual obligations.
(c) Provide money, pledges, notes, guarantees, or other means as are reasonably necessary to discharge its duties. If the association fails to act within a reasonable period of time, the director or his designee has the powers and duties of the association under this chapter with respect to the domestic impaired insurer.
(4) If a foreign or alien insurer is an impaired insurer under an order of liquidation, rehabilitation, or conservation, the association shall, subject to the approval of the director or his designee:
(a) Guarantee, assume, or reinsure, or cause to be guaranteed, assumed, or reinsured, the covered policies of residents.
(b) Assure payment of the impaired insurer's contractual obligations to residents.
(c) Provide monies, pledges, notes, guarantees, or other means as are reasonably necessary to discharge its duties. If the association fails to act within a reasonable period of time, the director or his designee has the powers and duties of the association under this chapter with respect to the foreign or alien impaired insurer.
(5) Liens may be imposed as long as the association:
(a) In carrying out its duties under items (3) and (4) of this section, requests that there be imposed policy liens, contract liens, moratoriums on payments, or other similar means. These liens, moratoriums, or similar means may be imposed if the director or his designee finds that the amounts which can be assessed under this chapter are less than the amounts needed to assure full and prompt performance of the impaired insurer's contractual obligations or that the economic or financial conditions as they affect member insurers are sufficiently adverse to render the imposition of policy or contract liens, moratoriums, or similar means to be in the public interest and approves the specific policy liens, contract liens, moratoriums, or similar means to be used.
(b) Before being obligated under items (3) and (4) of this section, requests, subject to the approval of the director or his designee, that there be imposed temporary moratoriums or liens on payments of cash values and policy loans.
(6) The association has no liability under this section for any covered policy of a foreign or alien insurer whose domiciliary jurisdiction or state of entry provides by statute or regulation for residents of this State protection substantially similar to that provided by this chapter for residents of other states. In addition, the association has no liability under this chapter for covered policies of a domestic insurer for residents of another state unless the other state has a guaranty association that provides protection to South Carolina residents substantially similar to that provided by this chapter for residents of other states.
(7) The association may render assistance and advice to the director or his designee, upon his request, concerning rehabilitation, payment of claims, continuations of coverage, or the performance of other contractual obligations of an impaired insurer.
(8) The association has the authority to appear before any court in this State with jurisdiction over an impaired insurer concerning which the association is or may become obligated under this chapter. This authority extends to all matters germane to the powers and duties of the association, including, but not limited to, proposals for reinsuring or guaranteeing the covered policies of the impaired insurer and the determination of the covered policies and contractual obligations.
(9) Any person receiving benefits under this chapter is considered to have assigned his rights under the covered policy to the association to the extent of the benefits received because of this chapter whether the benefits are payments of contractual obligations or continuation of coverage. The association may require an assignment to it of these rights by any payee, policy or contract owner, beneficiary, insured, or annuitant as a condition precedent to the receipt of any rights or benefits conferred by this chapter upon that person. The association is subrogated to these rights against the assets of any impaired insurer, and the subrogation rights of the association have the same priority against the assets as that possessed by the person entitled to receive benefits under this chapter.
(10) The contractual obligations of the impaired insurer for which the association becomes or may become liable are the same as the contractual obligations of the impaired insurer would have been in the absence of an impairment, but the association has no liability with respect to any portion of a covered policy to the extent that the policy's benefits to any one person exceed an aggregate of three hundred thousand dollars.
(11) The association may:
(a) Enter into contracts that are necessary or proper to carry out the provisions and purposes of this chapter.
(b) Sue or be sued, including taking any legal actions necessary or proper for recovery of any unpaid assessments under Section 38-29-80.
(c) Borrow money to effect the purposes of this chapter. Any notes or other evidence of indebtedness of the association not in default shall be legal investments for domestic insurers and may be carried as admitted assets.
(d) Employ or retain persons necessary to handle the financial transactions of the association and to perform other functions as become necessary or proper under this chapter.
(e) Negotiate and contract with any liquidator, rehabilitator, conservator, or ancillary receiver to carry out the powers and duties of the association.
(f) Take legal action necessary to avoid payment of improper claims.
(g) Exercise, for the purposes of this chapter and to the extent approved by the director or his designee, the powers of a domestic life or accident and health insurer, but in no case may the association issue insurance policies or annuity contracts other than those issued to perform the contractual obligations of the impaired insurer.
Section 38-29-80. (1) For the purpose of providing the funds necessary to carry out the powers and duties of the association, the board of directors shall assess the member insurers, separately for each account, at times and for amounts as the board finds necessary. Payment is due thirty days after written notice to the member insurers.
(2) There are three classes of assessments, as follows:
(a) Class A assessments are made for the purpose of meeting administrative costs and other general expenses not related to a particular impaired insurer.
(b) Class B assessments are made to the extent necessary to carry out the powers and duties of the association under Section 38-29-70 with regard to a domestic impaired insurer.
(c) Class C assessments are made to the extent necessary to carry out the powers and duties of the association under Section 38-29-70 with regard to a foreign or alien impaired insurer.
(3) Assessments must be determined as follows:
(a) The amount of any Class A, Class B, or Class C assessment for each account must be determined by the board based on the amounts necessary to satisfy the obligation of the association under this chapter.
(b) Class A assessments must be divided equally among all members not to exceed one hundred dollars per assessment. Class C assessments against member insurers for each account must be in the proportion that the premiums received on business in this State by each assessed member insurer on policies covered by each account bear to the premiums received on business in this State by all assessed member insurers.
(c) Class B assessments for each account must be made separately for each state in which the domestic impaired insurer was authorized to transact insurance at any time, in the proportion that the premiums received on business in that state by the impaired insurer on policies covered by that account bear to those premiums received in all of those states by the impaired insurer. The assessments against member insurers must be in the proportion that the premiums received on business in each of these states by each assessed member insurer on policies covered by each account bear to those premiums received on business in each state by all assessed member insurers.
(d) Assessments for funds to meet the requirements of the association with respect to an impaired insurer may not be made until necessary to implement the purposes of this chapter. Classification of assessments under subsection (2) of this section and computation of assessments under subsection (3) of this section must be made with a reasonable degree of accuracy, recognizing that exact determinations may not always be possible.
(4) The association may abate or defer, in whole or in part, the assessment of a member insurer if, in the opinion of the board, payment of the assessment would endanger the ability of the member insurer to fulfill its contractual obligations. The total of all assessments upon a member insurer for each account may not in any one calendar year exceed four percent of the insurer's premiums in this State on the policies covered by the account.
(5) In the event an assessment against a member insurer is abated or deferred, in whole or in part, because of the limitations set forth in subsection (4) of this section, the amount by which the assessment is abated or deferred may be assessed against the other member insurers in a manner consistent with the basis for assessments set forth in this section. If the maximum assessment, together with the other assets of the association in either account, does not provide in any one year in either account an amount sufficient to carry out the responsibilities of the association, the necessary additional funds must be assessed as soon thereafter as permitted by this chapter.
(6) The board may, by an equitable method as established in the plan of operation, refund to member insurers the amount by which the assets of the account exceed the amount the board finds is necessary to carry out during the coming year the obligations of the association with regard to that account, including assets accruing from net realized gains and income from investments. Refunds to member insurers must be in proportion to the contribution of the insurer to that account. A reasonable amount may be retained in any account to provide funds for the continuing expenses of the association and for future losses if refunds are impractical. (7) It is proper for any member insurer, in determining its premium rates and policy owner dividends as to any kind of insurance within the scope of this chapter, to consider the amount reasonably necessary to meet its assessment obligations under this chapter.
(8) The association shall issue to each insurer paying an assessment under this chapter a certificate of contribution, in a form prescribed by the director or his designee, for the amount so paid. All outstanding certificates are of equal dignity and priority without reference to amounts or dates of issue. A certificate of contribution may be shown by the insurer in its financial statement as an asset in the form and for the amount, if any, and period of time as the director or his designee may approve.
Section 38-29-90. (1) The association shall submit to the department a plan of operation and any amendments necessary or suitable to assure the fair, reasonable, and equitable administration of the association. The plan of operation and any amendments become effective upon the written approval of the director or his designee. If the association fails to submit suitable amendments to the plan, the director or his designee shall, after notice and hearing, adopt and promulgate reasonable amendments necessary or advisable to effectuate the provisions of this chapter. These amendments must continue in force until modified by the director or his designee or superseded by amendments submitted by the association and approved by the director or his designee.
(2) All member insurers shall comply with the plan of operation.
(3) The plan of operation shall, in addition to requirements enumerated elsewhere in this chapter:
(a) Establish procedures for handling the assets of the association.
(b) Establish the amount and method of reimbursing members of the board of directors under Section 38-29-60.
(c) Establish regular places and times for meetings of the board of directors.
(d) Establish procedures for records to be kept of all financial transactions of the association, its agents, and the board of directors.
(e) Establish the procedure whereby selections for the board of directors must be made and submitted to the department director.
(f) Establish any additional procedures for assessments under Section 38-29-80.
(g) Contain additional provisions necessary or proper for the execution of the powers and duties of the association.
(4) The plan of operation may provide that any or all powers and duties of the association, except those under subitem (c) of item (11) of Section 38-29-70 and Section 38-29-80, are delegated to a corporation, association, or other organization which performs or will perform functions similar to those of this association, or its equivalent, in two or more states. Such a corporation, association, or organization must be reimbursed for any payments made on behalf of the association and must be paid for its performance of any function of this association. A delegation under this subsection takes effect only with the approval of both the board of directors and the department director or his designee and may be made only to a corporation, association, or organization which extends protection not substantially less favorable and effective than that provided by this chapter.
Section 38-29-100. In addition to the duties and powers enumerated elsewhere in this chapter:
(1) The director or his designee:
(a) Shall notify the board of directors of the existence of an impaired insurer not later than three days after a determination of impairment is made or he receives notice of impairment.
(b) Shall, upon request of the board of directors, provide the association with a statement of the premiums in the appropriate states for each member insurer.
(c) Shall, when an impairment is declared and the amount of the impairment is determined, serve a demand upon the impaired insurer to make good the impairment within a reasonable time. Notice to the impaired insurer constitutes notice to its shareholders, if any. The failure of the insurer to comply promptly with the demand does not excuse the association from the performance of its powers and duties under this chapter.
(d) Must, in any liquidation or rehabilitation proceeding involving a domestic insurer, be appointed as the liquidator or rehabilitator. If a foreign or alien member insurer is subject to a liquidation proceeding in its domiciliary jurisdiction or state of entry, the director or his designee must be appointed conservator.
(2) The director or his designee may suspend or revoke, after notice and hearing, the certificate of authority to transact insurance in this State of any member insurer which fails to pay an assessment when due or fails to comply with the plan of operation. As an alternative, the director or his designee may impose the penalties provided in Section 38-2-10.
(3) Any action of the board of directors or the association may be appealed to the Administrative Law Judge Division as provided by law by any member insurer if the appeal is taken within thirty days of the action being appealed.
(4) The liquidator, rehabilitator, or conservator of an impaired insurer may notify all interested persons of the effect of this chapter.
Section 38-29-110. To aid in the detection and prevention of insurer impairments:
(1) The board of directors shall, upon majority vote, notify the director or his designee of any information indicating a member insurer may be unable or potentially unable to fulfill its contractual obligations.
(2) The board of directors may, upon majority vote, request that the director or his designee order an examination of a member insurer which the board in good faith believes may be unable or potentially unable to fulfill its contractual obligations. The examination may be conducted as a National Association of Insurance Commissioners examination or may be conducted by the director or his designee. The cost of the examination must be paid by the association and the examination report must be treated as are other examination reports. In no event may the examination report be released to the board of directors of the association prior to its release to the public, but this does not excuse the director or his designee from his obligation to comply with item (3) of this section. The director or his designee shall notify the board of directors when the examination is completed. The request for an examination must be kept on file by the department, but it is not open to public inspection prior to the release of the examination report to the public. It must be released at that time only if the examination discloses that the examined insurer is unable or potentially unable to meet its contractual obligations.
(3) The director or his designee shall report to the board of directors when he has reasonable cause to believe that a member or licensed insurer may be unable or potentially unable to fulfill its contractual obligations.
(4) The board of directors may, upon majority vote, make reports and recommendations to the director, his designee, and the department upon any matter germane to the solvency, liquidation, rehabilitation, or conservation of a member insurer. These reports and recommendations are not open to public inspection.
(5) The board of directors may, upon majority vote, make recommendations to the director, his designee, and the department for the detection and prevention of insurer impairments.
(6) The board of directors shall, at the conclusion of an insurer impairment in which the association carried out its duties under this chapter or exercised any of its powers under this chapter, prepare a report on the history and causes of the impairment, based on the information available to the association, and submit the report to the department.
Section 38-29-120. The association may recommend the appointment of a person to serve as a special deputy to act for the director or his designee and under his supervision in the liquidation, rehabilitation, or conservation of a member insurer.
Section 38-29-130. (1) Nothing in this chapter may be construed to reduce the liability for unpaid assessments of the insureds of an impaired insurer operating under a plan with assessment liability.
(2) Records must be kept of all negotiations and meetings in which the association or its representatives are involved to discuss the activities of the association in carrying out its powers and duties under Section 38-29-70. Records of these negotiations or meetings must be made public only upon the termination of a liquidation, rehabilitation, or conservation proceeding involving the impaired insurer, upon the termination of the impairment of the insurer, or upon the order of a court of competent jurisdiction. Nothing in this subsection (2) limits the duty of the association to render a report of its activities under Section 38-29-140.
(3) For the purpose of carrying out its obligations under this chapter, the association is considered to be a creditor of the impaired insurer to the extent of assets attributable to covered policies reduced by any amounts to which the association is entitled as subrogee pursuant to item (9) of Section 38-29-70. All assets of the impaired insurer attributable to covered policies must be used to continue all covered policies and pay all contractual obligations of the impaired insurer as required by this chapter. Assets attributable to covered policies, as used in this subsection (3), are that proportion of the assets which the reserves that should have been established for those policies bear to the reserve that should have been established for all policies of insurance written by the impaired insurer.
(4) With respect to distributing assets:
(a) Prior to the termination of any liquidation, rehabilitation, or conservation proceeding, the court may take into consideration the contributions of the respective parties, including the association, the shareholders, policy owners of the impaired insurer, and any other party with a bona fide interest, in making an equitable distribution of the ownership rights of the impaired insurer. In this determination, consideration must be given to the welfare of the policyholders of the continuing or successor insurer.
(b) No distribution to stockholders, if any, of an impaired insurer may be made until and unless the total amount of assessments levied by the association with respect to the insurer has been fully recovered by the association.
(5) It is a prohibited unfair trade practice for any person to make use in any manner of the protection afforded by this chapter in the sale of insurance.
(6) The recovery procedure shall provide that:
(a) If an order for liquidation or rehabilitation of a domestic insurer has been entered, the receiver appointed under the order has a right to recover on behalf of the insurer, from any affiliate that controlled it, the amount of distributions, other than stock dividends paid by the insurer on its capital stock, made at any time during the five years preceding the petition for liquidation or rehabilitation subject to the limitations of items (b), (c), and (d) of this subsection (6).
(b) No such dividend is recoverable if the insurer shows that when paid the distribution was lawful and reasonable and that the insurer did not know and could not reasonably have known that the distribution might adversely affect the ability of the insurer to fulfill its contractual obligations.
(c) Any person who was an affiliate that controlled the insurer at the time the distributions were paid is liable up to the amount of distributions he received. Any person who was an affiliate that controlled the insurer at the time the distributions were declared is liable up to the amount of distributions he would have received if they had been paid immediately. If two persons are liable with respect to the same distributions, they are jointly and severally liable.
(d) The maximum amount recoverable under this section is the amount needed in excess of all other available assets of the impaired insurer to pay the contractual obligations of the impaired insurer.
(e) If any person liable under item (c) of this subsection (6) is insolvent, all its affiliates that controlled it at the time the dividend was paid are jointly and severally liable for any resulting deficiency in the amount recovered from the insolvent affiliate.
Section 38-29-140. The association is subject to examination and regulation by the department. The board of directors shall annually submit to the department, by May first, a financial report for the preceding calendar year in a form approved by the director or his designee and a report of its activities during the preceding calendar year.
Section 38-29-150. The association is exempt from payment of all fees and all state, county, and municipal taxes.
Section 38-29-160. (1) Unless a longer period has been allowed by the director or his designee, a member insurer, at its option, has the right to show a certificate of contribution as an asset in the form approved by the director or his designee pursuant to subsection (8) of Section 38-29-80, at percentages of the original face amount approved by the director or his designee, for calendar years as follows: one hundred percent for the calendar year of issuance; eighty percent for the first calendar year after the year of issuance; sixty percent for the second calendar year after the year of issuance; forty percent for the third calendar year after the year of issuance; twenty percent for the fourth calendar year after the year of issuance; zero percent for the fifth calendar year after the year of issuance and thereafter.
(2) The insurer may offset the amount written off by it in a calendar year under subsection (1) against its premium (or income) tax liability to this State accrued with respect to business transacted in that year.
(3) Any sums acquired by refund, pursuant to subsection (6) of Section 38-29-80, from the association which have previously been written off by contributing insurers and offset against premium (or income) taxes as provided in subsection (2) of this section and are not then needed for purposes of this chapter must be paid by the association to the department and by him deposited with the State Treasurer for credit to the general fund of this State.
Section 38-29-170. There is no liability on the part of, and no cause of action of any nature may arise against, any member insurer or its agents or employees, the association's agents or employees, members of the board of directors, or the director or his representatives for any action taken by them in the authorized performance of their powers and duties under this chapter. This section does not relieve the association of any of its liability.
Section 38-29-180. All proceedings in which the impaired insurer is a party in any court in this State must be stayed sixty days from the date an order of liquidation, rehabilitation, or conservation is final to permit proper legal action by the association on any matters germane to its powers or duties. As to a judgment under any decision, order, verdict, or finding based on default the association may apply to have the judgment set aside by the same court that made the judgment and must be permitted to defend against the suit on the merits.
Section 38-29-190. The court shall fix a date, not less than four months from the date of the order, as the last day for the filing of claims, together with proper proofs thereof, with the association and shall prescribe the notice that must be given to insureds and claimants of the date. Prior to the date fixed the court may extend the time for the filing of claims.
Section 38-29-200. This chapter must be liberally construed to effect the purpose under Section 38-29-30 which constitutes an aid and guide to interpretation."
Name changed; etc.
SECTION 632. Chapter 31, Title 38 of the 1976 Code is amended to read:
"CHAPTER 31
South Carolina Property and Casualty Insurance
Guaranty Association
Section 38-31-10. This chapter is known and may be cited as the `South Carolina Property and Casualty Insurance Guaranty Association Act'.
Section 38-31-20. As used in this chapter:
(1) `Account' means any one of the four accounts created by Section 38-31-40.
(2) `Affiliate' means a person who directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with an insolvent insurer on December thirty-first of the year next preceding the date the insurer becomes an insolvent insurer.
(3) `Association' means the South Carolina Property and Casualty Insurance Guaranty Association created under Section 38-31-40.
(4) `Claimant' means any insured making a first party claim or any person instituting a liability claim. However, no person who is an affiliate of the insolvent insurer may be a claimant.
(5) `Control' means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a person, whether through the ownership of voting securities, by contract other than a commercial contract for goods or nonmanagement services, or otherwise, unless the power is the result of an official position with or corporate office held by the person. Control is presumed to exist if any person directly or indirectly owns, controls, holds with the power to vote, or holds proxies representing ten percent or more of the voting securities of any other person. This presumption may be rebutted by a showing that control does not exist in fact.
(6) `Covered claim' means an unpaid claim, including one of unearned premiums, which arises out of and is within the coverage and is subject to the applicable limits of an insurance policy to which this chapter applies issued by an insurer, if the insurer is an insolvent insurer and (a) the claimant or insured is a resident of this State at the time of the insured event, if for entities other than an individual, the residence of a claimant or insured is the state in which its principal place of business is located at the time of the insured event or (b) the property from which the claim arises is permanently located in this State. `Covered claim' does not include any amount awarded as extra-contractual damages unless awarded against the association; sought as a return of premium under any retrospective rating plan; or due any reinsurer, insurer, insurance pool, or underwriting association as subrogation recoveries or otherwise.
(7) `Insolvent insurer' means an insurer (a) licensed to transact insurance in this State either at the time the policy was issued or when the insured event occurred and (b) determined to be insolvent by a court of competent jurisdiction in the insurer's state of domicile or of this State and which the director or his designee has found fails to meet its obligation to policyholders in this State.
(8) `Member insurer' means any person who (a) writes any kind of insurance to which this chapter applies under Section 38-31-30, including the exchange of reciprocal or interinsurance contracts, and (b) is licensed to transact insurance in this State.
(9) `Net direct written premiums' means direct gross premiums written in this State on insurance policies to which this chapter applies, less return premiums on the policies and dividends paid or credited to policyholders on the direct business. It does not include premiums on contracts between insurers or reinsurers.
Section 38-31-30. This chapter applies to all kinds of direct insurance but does not apply to the following:
(1) life, annuity, health, or accident insurance;
(2) mortgage guaranty, financial guaranty, or other forms of insurance offering protection against investment risks;
(3) fidelity or surety bonds, or any other bonding obligations;
(4) credit insurance, vendors' single interest insurance, collateral protection insurance, or any similar insurance protecting the interests of a creditor arising out of a creditor-debtor transaction;
(5) insurance of warranties or service contracts;
(6) insurance written on a retroactive basis to cover known losses which have resulted from an event with respect to which a claim has already been made, and the claim is known to the insurer at the time the insurance is bound;
(7) title insurance;
(8) ocean marine insurance;
(9) any transaction or combination of transactions between a person, including affiliates of the person, and an insurer, including affiliates of the insurer, which does not effect a transfer of risk from the person, including affiliates of the person, to the insurer, including affiliates of the insurer, to the extent there is not a transfer of risk.
Section 38-31-40. There is created a nonprofit unincorporated legal entity to be known as the South Carolina Property and Casualty Insurance Guaranty Association. All insurers defined as member insurers in Section 38-31-20(8) are members of the association as a condition of their authority to transact insurance in this State. The association shall perform its functions under a plan of operation established and approved under Section 38-31-70 and shall exercise its powers through a board of directors established under Section 38-31-50. For purposes of administration and assessment, the association is divided into four separate accounts:
(a) the workers' compensation insurance account;
(b) the automobile insurance account;
(c) the homeowners multiple peril and farmowners multiple peril insurance account;
(d) the account for all other insurance to which this chapter applies.
Section 38-31-50. (1) The board of directors of the association shall consist of not less than five nor more than nine persons who shall serve terms as established in the plan of operation. Member insurers shall select the members of the board subject to the approval of the director. Any vacancy on the board must be filled for the unexpired portion of the term in the same manner as any initial appointment.
(2) In approving selections to the board, the director shall consider, among other things, whether all member insurers are fairly represented.
(3) Members of the board may be reimbursed from the assets of the association for expenses incurred by them as members of the board of directors.
Section 38-31-60. The association:
(a) is obligated to the extent of claims existing before the determination of insolvency and claims arising up to the earliest of the following dates:
(i) thirty days after the determination of insolvency;
(ii) the policy expiration date; or
(iii) the date the insured replaces or cancels the policy.
This obligation includes only the amount each covered claim is in excess of two hundred fifty dollars and is less than three hundred thousand dollars. However, the association shall pay the full amount of any covered workers' compensation claim. The association has no obligation to pay a claimant's covered claim, except a workers' compensation claim, if:
(1) the insured had primary coverage at the time of the loss with a solvent insurer equal to or in excess of three hundred thousand dollars and applicable to the claimant's loss; or
(2) the insured's coverage is written subject to a self-insured retention equal to or in excess of three hundred thousand dollars. If the primary coverage and self-insured retention is less than three hundred thousand dollars, the association's obligation to the claimant is reduced by the coverage or retention. The Guaranty Association shall pay the full amount of a covered workers' compensation claim to a claimant notwithstanding any self-insured retention but the Guaranty Association has the right to recover the amount of the self-insured retention from the employer. The association is not obligated to pay a claimant an amount in excess of the obligation of the insolvent insurer under the policy or coverage from which the claim arises. A covered claim does not include any claim filed with the association after the final date set by a court for the filing of claims against the liquidator or receiver of an insolvent insurer. The association shall pay only that amount of each unearned premium which is in excess of one hundred dollars;
(b) is considered the insurer to the extent of its obligation on the covered claims and, to this extent, has all rights, duties, and obligations of the insolvent insurer as if the insurer had not become insolvent. However, the association has the right but not the obligation to defend an insured who is not a resident of this State at the time of the insured event unless the property from which the claim arises is permanently located in this State in which instance the association does have the obligation to defend the insured;
(c) shall allocate claims paid and expenses incurred among the four accounts separately and assess member insurers separately for each account amounts necessary to pay:
(i) the obligation of the association under item (a) of this section;
(ii) the expenses of handling covered claims;
(iii) other expenses authorized by this chapter.
The assessments of each member insurer must be in the proportion that the net direct written premiums of the member insurer for the calendar year preceding the insolvency on the kinds of insurance in the account bear to the net direct written premiums of all member insurers for the calendar year preceding the insolvency on the kinds of insurance in the account. Each member insurer must be notified of the assessment not later than thirty days before it is due. No member insurer may be assessed in any year on any account an amount greater than one percent of that member insurer's net direct written premiums for the calendar year preceding the insolvency on the kinds of insurance in the account. If the maximum assessment, together with the other assets of the association in any account, does not provide in any year an amount sufficient to make all necessary payments from that account, the funds available must be prorated, and the unpaid portion must be paid as soon after proration as funds become available. The association may exempt or defer, in whole or in part, the payment of an assessment of any member insurer, if the payment would cause the member insurer's financial statement to reflect amounts of capital or surplus less than the minimum amounts required for a certificate of authority by any jurisdiction in which the member insurer is authorized to transact insurance. Any member insurer serving in the capacity of a servicing carrier for the South Carolina Reinsurance Facility, the South Carolina Windstorm and Hail Underwriting Association, the Medical Malpractice Joint Underwriting Association, or any other involuntary association must not be assessed for the premiums so written, but the assessment must be made directly against the facility, pool, joint underwriting association, or other association. Each member insurer serving as a servicing facility on behalf of the association may set off against any assessment authorized payments made on covered claims and expenses incurred in the payment of the claims by the member insurer;
(d) shall investigate claims brought against the association and adjust, compromise, settle, and pay covered claims to the extent of the association's obligation and deny all other claims and may review settlements, releases, and judgments to which the insolvent insurer or its insureds were parties to determine the extent to which these settlements, releases, and judgments may be properly contested;
(e) shall notify any person the director or his designee directs under Section 38-31-80(2)(a);
(f) shall handle claims through its employees or through one or more insurers or other persons designated as servicing facilities. Designation of a servicing facility is subject to the approval of the director or his designee, but designation may be declined by a member insurer;
(g) shall reimburse each servicing facility for obligations of the association paid by the facility and for expenses incurred by the facility while handling claims on behalf of the association and pay the other expenses of the association authorized by this chapter;
(h) may employ or retain persons necessary to handle claims and perform other duties of the association;
(i) may borrow funds necessary to effect the purpose of this chapter in accord with the plan of operation;
(j) may sue or be sued;
(k) may negotiate and become a party to contracts necessary to carry out the purpose of this chapter;
(l) may perform any other acts necessary or proper to effectuate the purpose of this chapter;
(m) may refund to the member insurers in proportion to the contribution of each member insurer to that account that amount by which the assets of the account exceed the liabilities, if, at the end of any calendar year, the board of directors finds that the assets of the association in any account exceed the liabilities of that account as estimated by the board of directors for the coming year.
Section 38-31-70. (1) The association shall submit to the department a plan of operation and any amendments necessary or suitable to assure the fair, reasonable, and equitable administration of the association. The plan of operation and any amendments become effective upon the written approval of the director or his designee. If the association fails to submit suitable amendments to the plan, the director or his designee shall, after notice and hearing, adopt and promulgate reasonable amendments necessary or advisable to effectuate the provisions of this chapter. These amendments continue in force until modified by the director or his designee or superseded by amendments submitted by the association and approved by the director or his designee.
(2) All member insurers shall comply with the plan of operation.
(3) The plan of operation shall:
(a) Establish the procedures whereby all the powers and duties of the association under Section 38-31-60 will be performed.
(b) Establish procedures for handling assets of the association.
(c) Establish the amount and method of reimbursing members of the board of directors under Section 38-31-50.
(d) Establish procedures by which claims may be filed with the association and establish acceptable forms of proof of covered claims. Notice of claims to the receiver or liquidator of the insolvent insurer is considered notice to the association or its agent and a list of these claims must be periodically submitted to the association or similar organization in another state by the receiver or liquidator.
(e) Establish regular places and times for meetings of the board of directors.
(f) Establish procedures for records to be kept of all financial transactions of the association, its agents, and the board of directors.
(g) Provide that any member insurer aggrieved by any final action or decision of the association may appeal to the Administrative Law Judge Division as provided by law within thirty days after the action or decision.
(h) Establish the procedures whereby selections for the board of directors will be submitted to the department director.
(i) Contain additional provisions necessary or proper for the execution of the powers and duties of the association.
(4) The plan of operation may provide that any or all powers and duties of the association, except those under items (c) and (i) of Section 38-31-60, are delegated to a corporation, association, or other organization which performs or will perform functions similar to those of this association, or its equivalent, in two or more states. This corporation, association, or organization must be reimbursed as a servicing facility would be reimbursed and must be paid for its performance of any other functions of the association. A delegation under this subsection (4) takes effect only with the approval of both the board of directors and the director or his designee and may be made only to a corporation, association, or organization which extends protection not substantially less favorable and effective than that provided by this chapter.
Section 38-31-80. (A) The director or his designee shall:
(1) notify the association of the existence of an insolvent insurer not later than three days after he receives notice of the determination of the insolvency;
(2) upon request of the board of directors, provide the association with a statement of the net direct written premiums of each member insurer.
(B) The director or his designee may:
(1) require that the association notify the insureds of the insolvent insurer and other interested parties of the determination of insolvency and of their rights under this chapter. The notification must be by mail at their last known address, where available, but if sufficient information for notification by mail is not available, notice by publication in a newspaper of general circulation is sufficient;
(2) suspend or revoke, after notice and hearing, the certificate of authority to transact insurance in this State of a member insurer who fails to pay an assessment when due or fails to comply with the plan of operation. As an alternative, the director or his designee may impose the penalties provided in Section 38-2-10;
(3) revoke the designation of a servicing facility if he finds claims are being handled unsatisfactorily;
(4) upon request of the board of directors, notwithstanding the limitation on assessments contained in Section 38-31-60(c)(iii), increase the maximum assessment in a year in an account in order for that assessment to provide an amount sufficient to make all necessary payments by the association from that account. However, no member insurer may be assessed in a year on an account under this provision an amount greater than two percent of the member insurer's net direct written premiums for the calendar year preceding the insolvency on the kinds of insurance in the account;
(5) after determining that an insurance emergency or catastrophe exists in this State pursuant to Insurance Department Regulation 69-1(2), direct the association to pay the first one hundred dollars of each unearned premium claim and the first two hundred fifty dollars of each covered claim, notwithstanding the provisions of Section 38-31-60(a).
Section 38-31-90. (1) Any person recovering under this chapter is considered to have assigned his rights under the policy to the association to the extent of his recovery from the association. Every insured or claimant seeking the protection of this chapter shall cooperate with the association to the same extent as he would have been required to cooperate with the insolvent insurer. The association has no cause of action against the insured of the insolvent insurer for any sums it has paid out except the causes of action the insolvent insurer would have had if the sums had been paid by the insolvent insurer. In the case of an insolvent insurer operating on a plan with assessment liability, payments of claims of the association do not operate to reduce the liability of insureds to the receiver, liquidator, or statutory successor for unpaid assessments.
(2) The receiver, liquidator, or statutory successor of an insolvent insurer is bound by settlements of covered claims by the association or a similar organization in another state. The court having jurisdiction shall grant these claims priority equal to that to which the claimant would have been entitled in the absence of this chapter against the assets of the insolvent insurer. The expenses of the association or similar organization in handling claims must be accorded the same priority as the liquidator's expenses.
(3) The association shall periodically file with the receiver or liquidator of the insolvent insurer statements of the covered claims paid by the association and estimates of anticipated claims on the association which shall preserve the rights of the association against the assets of the insolvent insurer.
Section 38-31-100. (1) Any person, having a claim against an insurer under any provision in an insurance policy other than a policy of an insolvent insurer which is also a covered claim, is required to exhaust first his right under that policy. Any amount payable on a covered claim under this chapter must be reduced by the amount of any recovery under that insurance policy.
(2) Any person having a claim which may be recovered under more than one insurance guaranty association or its equivalent shall seek recovery first from the association of the place of residence of the insured except that, if it is a first-party claim for damage to property with a permanent location, he shall seek recovery first from the association of the location of the property, and, if it is a workers' compensation claim, he shall seek recovery first from the association of the residence of the claimant. Any recovery under this chapter must be reduced by the amount of recovery from any other insurance guaranty association or its equivalent.
(3) Any person having a claim or legal right of recovery under any governmental insurance or guaranty program which is also a covered claim is required to exhaust first his right under the program. Any amount payable on a covered claim under this chapter must be reduced by the amount of any recovery under the program.
(4) No claim held by an insurer, reinsurer, insurance pool, or underwriting association, based on an assignment or on rights of subrogation, may be asserted in any legal action against a person insured under a policy issued by an insolvent insurer except to the extent the amount of the claim exceeds the obligation of the association under this chapter.
(5) Any person who has liquidated by settlement or judgment a claim against an insured under a policy issued by an insolvent insurer, and the claim is a covered claim and is also a claim within the coverage of any policy issued by a solvent insurer, is required to exhaust first his rights under the policy issued by the solvent insurer before execution, levy, or any other proceedings are begun to enforce any judgment obtained against or the settlement with the insured of the insolvent insurer.
Section 38-31-110. (A) The board of directors, upon majority vote, may make recommendations to the director, his designee, and the department for the detection and prevention of insurer insolvencies.
(B) The board of directors, at the conclusion of any insurer insolvency in which the association was obligated to pay covered claims, may prepare a report on the history and causes of the insolvency, based on the information available to the association, and submit the report to the department.
(C) The board of directors, upon majority vote, may respond to requests by the director or his designee to discuss and make recommendations regarding the status of any member insurer whose financial condition may be hazardous to policyholders or the public. These recommendations are not considered public documents.
Section 38-31-120. The association is subject to examination and regulation by the department. The board of directors shall annually submit, to the department, by March thirtieth a financial report for the preceding calendar year in a form approved by the director or his designee.
Section 38-31-130. The association is exempt from payment of all fees and all taxes levied by this State or any of its political subdivisions, except taxes levied on real or personal property.
Section 38-31-140. The rates and premiums charged for insurance policies to which this chapter applies shall include amounts sufficient to recoup a sum equal to the amounts paid to the association by the member insurer less any amounts returned to the member insurer by the association. These rates may not be considered excessive because they contain an amount reasonably calculated to recoup assessments paid by the member insurer.
Section 38-31-150. There is no liability on the part of, and no cause of action of any nature may arise against, any member insurer, the association's agents or employees, the board of directors, or the director or his representatives for any act or omission in the performance of their powers and duties under this chapter. This section does not relieve the association of any of its liability.
Section 38-31-160. All proceedings involving covered claims in which the insolvent insurer is a party or is obligated to defend a party in any court in this State must be stayed ninety days from the date insolvency is determined to permit proper defense by the association. The court may stay the proceedings for a longer period of time if the court finds the additional time is necessary to permit proper defense by the association. As to any judgment, decision, order, verdict, or finding based on the insurer's default or failure to defend the insured, the association may apply to have the judgment, decision, order, verdict, or finding set aside by the same court or administrator which made it and must be permitted to defend against the claim on its merits.
Section 38-31-170. (1) The director or his designee shall by order terminate the operation of the association as to any kind of insurance covered by this chapter with respect to which he has found, after hearing, that there is in effect a statutory or voluntary plan which:
(a) is a permanent plan which is adequately funded or for which adequate funding is provided; and
(b) extends, or will extend, to the South Carolina policyholders and residents protection and benefits with respect to insolvent insurers not substantially less favorable and effective to such policyholders and residents than the protection and benefits provided with respect to such kinds of insurance under this chapter.
(2) The director or his designee shall by the same order authorize discontinuance of future payments by insurers to the association with respect to the same kinds of insurance. However, the assessments and payments must continue, as necessary, to liquidate covered claims of insurers adjudged insolvent prior to the order and the related expenses not covered by such other plan.
(3) In the event the operation of the association is terminated as to all kinds of insurance within its scope, the association shall as soon as possible thereafter distribute the balance of remaining money and assets, after first discharging the association's duties with respect to prior insurer insolvencies and related expenses not covered by such other plan. The distribution must be to the insurers which are then writing in this State policies of the kinds of insurance covered by this chapter and which had made payments to this association, pro rata upon the basis of the aggregate of the payments made by the respective insurers during the period of five years next preceding the date of the order. Upon completion of the distribution with respect to all of the kinds of insurance covered by this chapter, this chapter is considered to have expired."
Name changed; terms defined, etc.
SECTION 633. Chapter 33, Title 38 of the 1976 Code is amended to read:
"CHAPTER 33
Health Maintenance Organizations
Section 38-33-10. This chapter may be cited as the Health Maintenance Organization Act of 1987.
Section 38-33-20. As used in this chapter:
(1) `Basic health care services' means emergency care, inpatient hospital and physician care, and outpatient medical services. It does not include dental services, mental health services, or services for alcohol or drug abuse, although a health maintenance organization at its option may elect to provide these services in its coverage.
(2) `Director' means the person who is appointed by the Governor upon the advice and consent of the Senate and who is responsible for the operation and management of the Department of Insurance, including all of its divisions. The director may appoint or designate the person or persons who shall serve at the pleasure of the director to carry out the objectives or duties of the department as provided by law. Furthermore, the director may bestow upon his designee or deputy director any duty or function required of him by law in managing or supervising the insurance department.
(3) `Copayment' or `deductible' means the amount specified in the evidence of coverage that the enrollee shall pay directly to the provider for covered health care services, which may be stated in either specific dollar amounts or as a percentage of the provider's usual or customary charge.
(4) `Enrollee' means an individual who is enrolled in a health maintenance organization.
(5) `Evidence of coverage' means a certificate, an agreement, or a contract issued to an enrollee setting out the coverage to which he is entitled.
(6) `Health care services' means services included in furnishing an individual medical or dental care or hospitalization or incident to the furnishing of care or hospitalization, and other services to prevent, alleviate, cure, or heal human illness, injury, or physical disability.
(7) `Health maintenance organization' means a person who undertakes to provide or arrange for basic health care services to enrollees for a fixed prepaid premium.
(8) `Person' means a natural or an artificial person including, but not limited to, individuals, partnerships, associations, trusts, or corporations.
(9) `Provider' means a physician, dentist, hospital, or other person properly licensed, where required, to furnish health care services.
(10) `Designee or Deputy Director' means the person or person appointed by director, serving at his will and pleasure as his designee, to supervise and carry out the functions and duties of the department as provided by law. Any duty or function of the director to manage and supervise the insurance department may be conferred by the director's authority upon his designee or deputy director.
Section 38-33-30. (A) No person may establish or operate a health maintenance organization in this State without first obtaining a certificate of authority from the director or his designee. A foreign corporation, upon compliance with the provisions of this chapter, may be issued a certificate of authority upon further conditions that:
(1) the applicant is registered as a foreign corporation to do business in this State;
(2) the applicant is subject to regulation of its financial condition by authorities in its state of domicile, including regular financial examination not less frequently than once every three years; and
(3) the applicant complies with such conditions as the director or his designee may prescribe with respect to the maintenance of books, records, accounts, and facilities in this State.
(B) Each application for a certificate of authority must be verified by an officer or authorized representative of the applicant, must be filed in triplicate in a form prescribed by the director or his designee, and must set forth the following:
(1) a copy of the organizational documents of the applicant, such as the articles of incorporation, articles of association, partnership agreement, trust agreement, or other applicable documents, and all amendments;
(2) a copy of the bylaws and regulations, or similar document, if any, regulating the conduct of the internal affairs of the applicant;
(3) a list of the names, addresses, and official positions of the persons who are to be responsible for the management and conduct of the affairs of the applicant, including, but not limited to, all members of the board of directors, board of trustees, executive committee, or other governing board or committee, the principal offices in the case of a corporation, and the partners or members in the case of a partnership or association;
(4) a copy of any contract made or to be made between any providers or persons listed in item (3) and the applicant;
(5) a copy of the form of evidence of coverage to be issued to the enrollees;
(6) a copy of the form or group contract, if any, which is to be issued to employers, unions, trustees, or other organizations;
(7) financial statements showing the applicant's assets, liabilities, and sources of financial support. If the applicant's financial affairs are audited by independent certified public accountants, a copy of the applicant's most recent certified financial statements satisfies this requirement unless the director or his designee directs that additional or more recent financial information is required for the proper administration of this chapter;
(8) a description of the proposed method of marketing, a financial plan which includes a projection of operating results anticipated until the organization has had net income for at least one year, and a statement as to the sources of working capital as well as any other sources of funding;
(9) a power of attorney duly executed by the applicant appointing the director and his authorized deputies or designees, as the lawful attorney of the applicant in this State upon whom all lawful process in any legal action or proceeding against the health maintenance organization on a cause of action arising in this State may be served;
(10) a statement reasonably describing the geographic area to be served;
(11) a description of the complaint procedures to be utilized as required under Section 38-33-110;
(12) a description of the procedures and programs to be implemented to meet the quality of health care requirements in Section 38-33-40;
(13) a description of the mechanism by which enrollees have an opportunity to participate in matters of policy and operation under Section 38-33-60(2);
(14) any other information as the director or his designee may require to make the determination required in Section 38-33-40.
(C)(1) An applicant or a health maintenance organization holding a certificate of authority granted hereunder shall, unless otherwise provided for in this chapter, file a notice describing any material modification of the operation set out in the information required by subsection (B). The notice must be filed with the director or his designee prior to the modification. If the director or his designee does not disapprove within thirty days of filing, the modification is considered approved.
(2) The department may promulgate regulations exempting from the filing requirements of item (1) those items he considers unnecessary.
(D) An applicant or a health maintenance organization holding a certificate of authority shall file all contracts of reinsurance or a summary of the plan of self-insurance. Any agreement between the organization and an insurer is subject to the laws of this State regarding reinsurance. All reinsurance agreements or summaries of plans of self-insurance and any modifications thereto must be filed and approved. Reinsurance agreements shall remain in full force and effect for at least thirty days following written notice by registered mail of cancellation by either party to the director or his designee.
Section 38-33-40. (A) The director or his designee shall issue a certificate of authority to a person filing an application pursuant to Section 38-33-30 if, upon payment of the application fee prescribed in Section 38-33-220, the director or his designee is satisfied that:
(1) The persons responsible for the conduct of the affairs of the applicant are competent, trustworthy, and possess good reputations.
(2) The health maintenance organization's proposed plan of operation has arrangements for an on-going quality assurance program.
(3) The health maintenance organization effectively provides or arranges for the provision of basic health care services for a fixed prepaid premium, except to the extent of reasonable requirements for deductibles or co-payments.
(4) The health maintenance organization is financially responsible, is able to meet its obligations to enrollees and prospective enrollees, and otherwise meets the requirements of this chapter. In making this determination, considerations by the director or his designee may include, but are not limited to:
(a) the financial soundness of the arrangements for health care services and the schedule of charges used in connection with them;
(b) the adequacy of working capital;
(c) an agreement with an insurer, a government, or other organization for insuring the payment of the cost of health care services or the provision for automatic applicability of an alternative coverage if the health maintenance organization is discontinued;
(d) an agreement with providers for the provision of health care services;
(e) a deposit of cash or securities submitted in accordance with Section 38-33-130.
(5) The enrollees are afforded an opportunity to participate in matters of policy and operation pursuant to Section 38-33-60.
(6) Nothing in the proposed method of operation, pursuant to Section 38-33-30 or by independent investigation, is contrary to the public interest.
(B) No health maintenance organization may be licensed unless it has employed or contracted with or made arrangements satisfactory to the director or his designee with both physicians and hospitals to participate as providers in each geographic area to be served, as identified by the health maintenance organization under Section 38-33-30.
Section 38-33-50. (A) The powers of a health maintenance organization include, but are not limited to, the following:
(1) the purchase, lease, construction, renovation, operation, or maintenance of hospitals, medical facilities, or both, and their ancillary equipment, and such property as may reasonably be required for its principal office or for such purposes as may be necessary in the transaction of the business of the organization;
(2) the making of loans to a medical group under contract with it in furtherance of its program or the making of loans to a corporation under its control for the purpose of acquiring or constructing medical facilities and hospitals or in furtherance of a program providing health care services to enrollees;
(3) the furnishing of health care services through providers which are under contract with or employed by the health maintenance organization;
(4) the contracting with any person for the performance on its behalf of certain functions such as marketing, enrollment, and administration;
(5) the contracting with an insurance company licensed in this State for the provision of insurance, indemnity, or reimbursement against the cost of health care services provided by the health maintenance organization;
(6) the offering of other health care services, in addition to basic health care services;
(7) providing services included in federal health care programs such as `Medicare', `Medicaid', `Champus', and veterans administration and other health programs funded in whole or in part by federal funds, in accordance with the laws governing these programs.
(B)(1) A health maintenance organization shall file notice, with adequate supporting information, with the director or his designee prior to the exercise of any power granted in subsection (A)(1), (2), (4), or (7). The director or his designee may disapprove such exercise of power if in his opinion it would adversely affect the financial soundness of the health maintenance organization and endanger its ability to meet its obligations. If the director or his designee does not disapprove within thirty days of the filing, it is considered approved.
(2) The department may promulgate regulations exempting from the filing requirement of item (1) those activities having a de minimis effect.
Section 38-33-60. (A) The governing body of any health maintenance organization may include providers, or other individuals, or both.
(B) The governing body shall establish a mechanism to afford the enrollees an opportunity to participate in matters of policy and operation through the establishment of advisory panels, by the use of advisory referenda on major policy decisions, or through the use of other mechanisms.
Section 38-33-70. Any director, officer, employee, or partner of a health maintenance organization who receives, collects, disburses, or invests funds in connection with the activities of an organization is responsible for the funds in a fiduciary relationship to the organization.
Section 38-33-80. (A)(1) Every enrollee is entitled to an evidence of coverage issued by the health maintenance organization. If any of the enrollee's benefits are provided through an insurance policy, the insurer shall issue a separate evidence of coverage for those benefits provided.
(2) No evidence of coverage, or amendment thereto, may be issued or delivered to any person in this State until a copy of the form of the evidence of coverage, or amendment thereto, has been filed with and approved by the director or his designee.
(3) No evidence of coverage may contain provisions or statements which are unjust, unfair, inequitable, misleading, deceptive, which encourage misrepresentation, or which are untrue, misleading, or deceptive as defined in Section 38-33-140; and
(4) An evidence of coverage must contain a clear and concise statement, if a contract, a summary, or a certificate, of:
(a) the health care services and the insurance or other benefits, if any, to which the enrollee is entitled;
(b) any limitations on the services, kind of services, benefits, or kind of benefits, to be provided, including any deductible or co-payment feature;
(c) where and in what manner information is available as to how services may be obtained;
(d) the total amount of payment for health care services and the indemnity or service benefits, if any, which the enrollee is obligated to pay with respect to individual contracts;
(e) clear and understandable description of the health maintenance organization's method for resolving enrollee complaints; and
(f) the contract period during which the enrollee is entitled to health care services and benefits, the applicable charges for coverage during that contract period, and the time and manner in which charges and benefits under the contract or certificate can be changed. Any subsequent change may be evidenced in a separate document issued to the enrollee.
(5) The director or his designee may require additional provisions in the evidence of coverage as may be necessary to the fair, just, and equitable treatment of enrollees. The additional provisions may include, but are not limited to, any of the provisions required of health insurance policies in Chapter 71 of Title 38 and regulations promulgated thereunder, if in the opinion of the director or his designee, the provisions are appropriate for the coverages provided under the health maintenance organization's evidence of coverage.
(6) The provisions of Section 38-71-760 governing discontinuance and replacement of coverage are applicable to group health maintenance organization contracts, except to the extent that the director or his designee determines the provisions to be inappropriate to the coverage provided.
(B)(1) No schedule of charges for enrollee coverage for health care services may be used until a copy of the schedule has been filed with and approved by the director or his designee.
(2) The charges may be established in accordance with actuarial principles for various categories of enrollees, provided that charges applicable to an enrollee may not be individually determined based on the status of his health. However, the charges may not be excessive, inadequate, or unfairly discriminatory. A certification, by a qualified actuary or other qualified person acceptable to the director or his designee to the appropriateness of the use of the charges, based on reasonable assumptions, shall accompany the filing along with adequate supporting information.
(3) Nothing herein may be construed to require individual approval of rates for each contract issued in conformity with a schedule of charges filed with and approved by the director or his designee.
(C) The director or his designee shall within a reasonable period approve any form if the requirements of subsection (A) are met and any schedule of charges if the requirements of subsection (B) are met. It is unlawful to issue a form or to use a schedule of charges until approved. If the director or his designee disapproves the filing, he shall notify the filer. In the notice, the director or his designee shall specify the reasons for his disapproval. A hearing must be granted within forty-five days after a request in writing by the person filing. If the director or his designee does not approve any form or schedule of charges within ninety days of the filing of the forms or charges, they are considered approved.
(D) The director or his designee may require the submission of such relevant information as he considers necessary in determining whether to approve or disapprove a filing made pursuant to this section.
Section 38-33-90. (A) Every health maintenance organization annually before March second shall file a report verified by at least two principal officers with the director or his designee covering the preceding calendar year. The report must be on forms prescribed by the director or his designee.
(B) The director or his designee may require quarterly reports and additional information considered necessary to enable him to carry out his duties under this chapter. The reports and information must be furnished in the time and manner prescribed by the director or his designee.
(C) Upon timely written request by a principal officer setting forth reasons why the statements, reports, or information in subsections (A) and (B) cannot be filed within the time required, the director or his designee, in writing, may grant an extension of filing time not to exceed thirty days.
Section 38-33-100. (A) No health maintenance organization may be issued a certificate of authority unless it is possessed of net worth of at least one million, two hundred thousand dollars, six hundred thousand dollars of which must be capital if it is a stock health maintenance organization. After the issuance, the health maintenance organization shall maintain a net worth of not less than six hundred thousand dollars. Net worth means total assets less total liabilities. Instruments acceptable to the director or his designee may be utilized in determining net worth. If the director or his designee determines that the number of enrollees in the health maintenance organization is excessive or may become excessive in relation to the organization's net worth, the director or his designee may require that future enrollment be limited until it is no longer necessary.
(B) The director or his designee may require a health maintenance organization to meet greater initial net worth requirements based on the health maintenance organization's plan of operation. In making a determination to require greater initial net worth, the director or his designee may consider, among other factors, the health maintenance organization's projected enrollment, rates, and expenses.
Section 38-33-110. (A)(1) Every health maintenance organization shall establish and maintain a complaint system which is approved by the director or his designee to provide reasonable procedures for the resolution of written complaints initiated by enrollees.
(2) Each health maintenance organization, with the annual report required in Section 38-33-90, shall submit to the department an annual report in a form the director prescribes which must include:
(a) a summary of written complaints handled through the health maintenance organization's approved complaint system. The summary must include the total number of complaints organized by the nature of the complaint and the average time taken to resolve the complaint;
(b) the number, amount, and disposition of malpractice claims made by enrollees of the health maintenance organization that it settled during the year.
(B) The director or his designee at any time may examine the complaint system. Information concerning complaints and malpractice claims filed pursuant to this section must be held in confidence and are not subject to disclosure under the Freedom of Information Act.
Section 38-33-120. With the exception of investments made in accordance with Section 38-33-50 (A)(1) and (2) and (B), the funds of a health maintenance organization must be invested only in securities or other investments permitted by the laws of this State for the investment of assets which qualify to cover policyholder obligations of life insurance companies or such other securities or investments as the director or his designee may permit.
Section 38-33-130. (A) Each health maintenance organization shall deposit and maintain with the department cash or securities which qualify as legal investments under the laws of this State for public sinking funds in the amount of three hundred thousand dollars. The director or his designee may require a health maintenance organization to make deposits in excess of the amount specified in this section if in his opinion the additional deposits are necessary for the protection of enrollees and the public. All income from deposits must belong to the depositing organization and must be paid to it as it becomes available. A health maintenance organization that has made a security deposit may withdraw that deposit or part of it after making a substitute deposit of cash, securities, or a combination of these of equal amount and value. Securities must be approved by the director or his designee before being substituted. The return of cash or securities deposited with the department by a health maintenance organization pursuant to this section is governed by Section 38-9-150.
(B) Each health maintenance organization shall require every provider who participates in the health maintenance organization and furnishes health care services to the health maintenance organization's enrollees to execute an agreement not to bill the enrollee or otherwise hold the enrollee financially responsible for services rendered. The provider's agreement must be given on forms prescribed or approved by the director or his designee, shall extend to all services furnished to the enrollee during the time he was enrolled in the health maintenance organization, and shall apply even where the provider has not been paid by the health maintenance organization.
(C) Each health maintenance organization shall procure and maintain a policy of individual excess stop-loss coverage provided by an insurance company licensed by the state. The policy must also include provisions to cover all incurred, unpaid claim liability in the event of the health maintenance organization's termination due to insolvency or otherwise. In addition, the director or his designee may require that the policy provide that the insurer will issue an individual conversion policy to any enrollee upon termination of the health maintenance organization or the enrollee's ineligibility for further coverage in the health maintenance organization. Any such conversion policy must meet at least the minimum requirements of Section 38-71-770.
Section 38-33-140. (A) No health maintenance organization, or representative thereof, may cause or knowingly permit the use of advertising which is untrue or misleading, solicitation which is untrue or misleading, or any form of evidence of coverage which is deceptive. For purposes of this chapter:
(1) A statement or item of information is considered to be untrue if it does not conform to fact in any respect which is significant to a reasonable person enrolled in, or considering enrollment with, a health maintenance organization.
(2) A statement or item of information is considered to be misleading, whether or not it may be literally untrue, if, in the total context in which the statement is made or the item of information is communicated, the statement or item of information may be reasonably understood by a reasonable person, not possessing special knowledge regarding health care coverage, as indicating any benefit or advantage or the absence of any exclusion, limitation, or disadvantage of possible significance to an enrollee of, or person considering enrollment in a health maintenance organization if the benefit or advantage or absence of limitation, exclusion, or disadvantage does not in fact exist.
(3) An evidence of coverage is considered to be deceptive if the evidence of coverage taken as a whole, and with consideration given to typography and format, as well as language, causes a reasonable person, not possessing special knowledge regarding health maintenance organizations and evidences of coverage therefor, to expect benefits, services, charges, or other advantages which the evidence of coverage does not provide or which the health maintenance organization issuing the evidence of coverage does not regularly make available for enrollees covered under such evidence of coverage.
(B) Chapter 57 of Title 38 is construed to apply to health maintenance organizations and evidences of coverage except to the extent that the director or his designee determines that the nature of health maintenance organizations and evidences of coverage render such sections clearly inappropriate.
(C) A health maintenance organization may not cancel or refuse to renew an enrollee, except for reasons stated in the organization's regulations applicable to all enrollees, or for the failure to pay the charge for such coverage, or for such other reasons as may be promulgated by the department.
(D) No health maintenance organization may refer to itself as an insurer or use a name deceptively similar to the name or description of any insurance or surety corporation doing business in the state.
(E) Any person not in possession of a valid certificate of authority issued pursuant to this chapter may not use the phrase `health maintenance organization' or `HMO' in the course of operation.
Section 38-33-150. (A) An agent means a person who is appointed or employed by a health maintenance organization and who engages in solicitation of membership in the organization. This definition does not include a person enrolling members on behalf of an employer, union, or other organization to whom a master subscriber contract has been issued.
(B) The department may by regulation exempt certain classes of persons from the requirement of obtaining a license:
(1) if the functions they perform do not require special competence, trustworthiness, or the regulatory surveillance made possible by licensing; or
(2) if other existing safeguards make regulation unnecessary.
Section 38-33-160. (A) An insurance company licensed in this State may through a subsidiary or affiliate organize and operate a health maintenance organization under the provisions of this chapter. Any two or more such insurance companies or subsidiaries or affiliates thereof may jointly organize and operate a health maintenance organization.
(B) An insurer may contract with a health maintenance organization to provide insurance or similar protection against the cost of care provided through health maintenance organizations and to provide coverage in the event of the failure of the health maintenance organization to meet its obligations. Among other things, under such contracts, the insurer may make benefit payments to health maintenance organizations for health care services rendered by providers.
Section 38-33-170. (A) The director or his designee may make an examination of the affairs of a health maintenance organization and providers with whom the organization has contracts, agreements, or other arrangements as often as is reasonably necessary for the protection of the interests of the people of this State but not less frequently than once every three years. The director or his designee may accept the report of an examination made by the state where the health maintenance organization is domiciled.
(B) The director or his designee may make an examination concerning the quality of health care service of a health maintenance organization and providers with whom the organization has contracts, agreements, or other arrangements as often as is reasonably necessary for the protection of the interests of the people of this State but not less frequently than once every three years.
(C) Every health maintenance organization and provider shall submit its relevant books and records for the examinations and facilitate them. For the purpose of examinations, the director or his designee and the department may administer oaths to and examine the officers and agents of the health maintenance organization and the principals of the providers concerning their business.
(D) The expenses of examinations under this section are assessed against the organization being examined and remitted to the director or his designee for whom the examination is being conducted.
Section 38-33-180. (A) The director or his designee may suspend or revoke a certificate of authority issued to a health maintenance organization if he finds that one or more of the following conditions exist:
(1) The health maintenance organization is operating significantly in contravention of its basic organizational document or in a manner contrary to that described in other information submitted under Section 38-33-30, unless amendments to the submissions have been filed with and approved by the director or his designee.
(2) The health maintenance organization issues evidence of coverage or uses a schedule of charges for health care services which do not comply with the requirements of Section 38-33-80.
(3) The health maintenance organization does not provide or arrange for basic health care services.
(4) The health maintenance organization does not meet the requirements of Section 38-33-40 or is unable to fulfill its obligations to furnish health care services.
(5) The health maintenance organization is financially unsound or reasonably may be expected to be unable to meet its obligations to enrollees or prospective enrollees.
(6) The health maintenance organization has failed to implement a mechanism affording the enrollees an opportunity to participate in matters of policy and operation under Section 38-33-60.
(7) The health maintenance organization has failed to implement the complaint system required by Section 38-33-110 in a reasonable manner to resolve valid complaints.
(8) The health maintenance organization, or a person on its behalf, advertised or merchandised its services in an untrue, misrepresentative, misleading, deceptive, or unfair manner.
(9) The continued operation of the health maintenance organization is hazardous to its enrollees.
(10) The health maintenance organization otherwise has failed to comply with this chapter or regulations promulgated under it by the department.
(B) A certificate of authority is suspended or revoked only after compliance with the requirements of Section 38-33-210.
(C) When the certificate of authority of a health maintenance organization is suspended, the health maintenance organization, during the suspension, may not enroll additional enrollees except newborn children or other newly acquired dependents of existing enrollees and may not engage in advertising or solicitation.
(D) When the certificate of authority of a health maintenance organization is revoked, the organization shall proceed, immediately following the effective date of the order of revocation, to wind up its affairs and may conduct no further business except as may be essential to the orderly conclusion of the affairs of the organization. It may not engage in further advertising or solicitation. The director or his designee, by written order, may permit further operation of the organization he finds to be in the best interest of enrollees, to the end that enrollees are afforded the greatest practical opportunity to obtain continuing health care coverage.
Section 38-33-190. Any rehabilitation, liquidation, or conservation of a health maintenance organization is considered to be the rehabilitation, liquidation, or conservation of an insurance company and must be conducted under the supervision of the director or his designee pursuant to the law governing the rehabilitation, liquidation, or conservation of insurance companies. The director or his designee may apply for an order directing him to rehabilitate, liquidate, or conserve a health maintenance organization upon any one or more grounds set out in Sections 38-27-310 and 38-27-370, or when in his opinion the continued operation of the health maintenance organization would be hazardous either to the enrollees or to the people of this State. Enrollees shall have the same priority in the event of liquidation or rehabilitation as the law provides to policyholders of an insurer.
Section 38-33-200. The department may, after notice and hearing, promulgate regulations to carry out the provisions of this chapter.
Section 38-33-210. (A) When the director or his designee has cause to believe that grounds for the denial of an application for a certificate of authority exist, or that grounds for the suspension or revocation of a certificate of authority exist, he shall notify the health maintenance organization in writing specifically stating the grounds for denial, suspension, or revocation and fixing a time of at least thirty days thereafter for a hearing on the matter. However, if the ground for suspension or revocation relates solely to financial condition, the director or his designee may immediately and without hearing suspend the certificate of authority of the health maintenance organization.
(B) The provisions of Article 3, Chapter 23, Title 1, apply to administrative proceedings under this section. Whenever the director or his designee issues an order of suspension without an administrative hearing before the director or his designee based upon a health maintenance organization's financial condition, as authorized under subsection (A), the health maintenance organization has a right to judicial review before the Administrative Law Judge Division in accordance with law.
Section 38-33-220. (A) Every health maintenance organization subject to this chapter shall pay to the department the following fees:
(1) for filing an application for a certificate of authority, two thousand dollars;
(2) for filing an amendment to the organization documents that requires approval, one hundred dollars;
(3) for filing each annual report, one thousand dollars;
(4) for transferring a certificate of authority from one entity to another which qualifies for such a certificate of authority, two thousand dollars.
(B) Fees charged under this section must be deposited in the general fund of the state. Fees required in this section must be fully earned when paid and are not refundable, proratable, nor transferable.
Section 38-33-230. (A) The director or his designee may, in lieu of revocation or suspension of a certificate of authority under Section 38-33-180, levy an administrative penalty of not more than fifteen thousand dollars for each violation or ground as prescribed therein. A series of acts by an organization which merely implement a basic violation and are not separate and distinct violations of an independent nature are considered to be part of the basic violation and only one penalty may be imposed. A monetary penalty may be imposed under this paragraph only after notice and an opportunity to be heard have been afforded in accordance with Section 38-33-210.
(B) Whenever the director or his designee has reason to believe that any person has transacted the business of, or is about to transact the business of, a health maintenance organization without a certificate of authority, he may cause a complaint to be filed in the court of common pleas of Richland County to enjoin and restrain the unauthorized transaction of business. The court has power to make and enter an order or judgment awarding such preliminary or final injunctive relief as may be necessary and proper. In addition, the court may impose a civil penalty of not more than ten thousand dollars upon such person for each unauthorized act of business so transacted.
Section 38-33-240. (A) Except as otherwise specifically provided, the provisions of the insurance law do not apply to any health maintenance organization granted a certificate of authority under this chapter.
(B) Solicitation of enrollees by a health maintenance organization granted a certificate of authority, or its representatives, are not construed to violate any provision of law relating to solicitation or advertising by health professionals.
(C) No health maintenance organization authorized under this chapter is considered to be practicing medicine, dentistry, or other healing professions.
Section 38-33-250. All applications and filings required under Section 38-33-30 and any annual and quarterly financial reports required under Section 38-33-90 must be treated as public documents. Nothing herein may be construed to require disclosure of trade secrets, privileged or confidential commercial information, or replies to a specific request for information made by the director or his designee.
Section 38-33-260. Any data or information pertaining to the diagnosis, treatment, or health of any enrollee or applicant obtained from such person or from any provider by any health maintenance organization is confidential and may not be disclosed to any person except to the extent that it may be necessary to carry out the purposes of this chapter, or upon the express consent of the enrollee or applicant, or pursuant to statute or court order for the production of evidence or the discovery thereof, or in the event of claim or litigation between such person and the health maintenance organization wherein the data or information is pertinent. A health maintenance organization is entitled to claim any statutory privileges against such disclosure which the provider who furnished the information to the health maintenance organization is entitled to claim.
Section 38-33-270. (A) The director or his designee, in carrying out the obligations under Sections 38-33-40, 38-33-170(B), and 38-33-180(A), may contract with qualified persons to make recommendations concerning the determinations required to be made by him. The recommendations may be accepted in full or in part by the director or his designee.
(B) The director or his designee may assess the health maintenance organization directly for consulting expenses incurred pursuant to subsection (A) and require the organization to remit payment directly to the consultant. These expenses must be reasonable. The director or his designee is not required to but may consider the results of a quality assurance examination made at an appropriate time by a person with whom the health maintenance organization has a contract to provide health care services or by a person who has a legitimate interest in the quality of care provided by the organization.
Section 38-33-280. No person may make a tender for or a request or invitation for tenders of, or enter into an agreement to exchange securities for or acquire in the open market or otherwise, any voting security of a health maintenance organization or enter into any other agreement if, after the consummation thereof, that person would, directly or indirectly, or by conversion or by exercise of any right to acquire, be in control of the health maintenance organization, and no person may enter into an agreement to merge or consolidate with or otherwise to acquire control of a health maintenance organization, unless, at the time any offer, request, or invitation is made or any agreement is entered into, or prior to the acquisition of the securities if no offer or agreement is involved, the person has filed with the department and has sent to the health maintenance organization, information required by Section 38-21-70 and the offer, request, invitation, agreement, or acquisition has been approved by the director or his designee. Approval by the director or his designee is governed by Section 38-21-90.
Section 38-33-290. No health maintenance organization may prohibit any licensed physician, podiatrist, optometrist, or oral surgeon from participating as a provider in the organization on the basis of his profession. Nothing in this section may be construed to interfere in any way with the medical decision of the primary health care provider to use or not use any health professional on a case-by-case basis.
Section 38-33-300. There may be no monetary liability on the part of, and no cause of action may arise against, any person who participates in quality of care or utilization reviews by a peer review committee established in accordance with regulations of the department under Section 38-33-40(A)(2) for any act performed during such reviews, provided such person acts in good faith and without malice, has made a reasonable effort to obtain the facts of the matter, and reasonably believes that the action taken is warranted by the facts."
Name changed
SECTION 634. Section 38-35-10 of the 1976 Code is amended to read:
"Section 38-35-10. Members of religious denominations, local lodges, or fraternal orders under the control and supervision of a representative governing body within this State or of local labor organizations with a national or international charter or any number of persons, not less than twenty, a majority of whom must be bona fide residents of this State may, when investigated and approved by the director or his designee, form mutual associations, incorporated or unincorporated, for the purpose of aiding their members or their beneficiaries in times of sickness and death by levying equitable assessments for the payment of sick relief or death benefits upon compliance with this chapter."
Name changed
SECTION 635. Section 38-35-40 of the 1976 Code is amended to read:
"Section 38-35-40. Mutual associations shall file an annual report with the department. If, after examination of the report, the director or his designee determines that the mutual association has complied with the insurance laws, he may issue it a certificate showing compliance."
Name changed
SECTION 636. Section 38-35-50 of the 1976 Code is amended to read:
"Section 38-35-50. A mutual association is subject to any examination by the director or his designee which will enable him to determine that it has complied with the state insurance laws."
Name changed
SECTION 637. Section 38-37-60 of the 1976 Code is amended to read:
"Section 38-37-60. This chapter does not apply to the following:
(1) Associations which limit their membership to one hazardous occupation.
(2) Similar societies which do not issue insurance certificates.
(3) An association of local lodges of an association.
(4) The ladies' societies or ladies' auxiliaries to such societies or associations, doing business in this State on May 12, 1947, which provide death benefits not exceeding five hundred dollars to any person or disability benefits not exceeding three hundred dollars in any one year to any one person or both.
(5) Any contracts or reinsurance business on such plans in this State.
(6) Domestic associations which limit their membership to the employees of a particular city or town or designated firm, business house, or corporation.
(7) Domestic lodges, orders, or associations of a purely religious, charitable, and benevolent description which do not provide for a death benefit of more than one hundred dollars or for disability benefits of more than one hundred fifty dollars to any one person in any one year.
The director or his designee may require from an association any information that will enable him to determine whether it is exempt from this chapter."
Name changed
SECTION 638. Section 38-37-220 of the 1976 Code is amended to read:
"Section 38-37-220. Articles of incorporation, duly certified copies of the constitution, and bylaws, rules, and regulations, copies of all proposed forms of benefit certificates, applications for benefit certificates, circulars to be issued by the association, and a bond in the sum of five thousand dollars, with sureties approved by the director or his designee, conditioned upon the return of the advanced payments, as provided in Section 38-37-230, to applicants if the organization is not completed within one year, must be filed with the department. The director or his designee may require further information."
Name changed
SECTION 639. Section 38-37-230 of the 1976 Code is amended to read:
"Section 38-37-230. If the purposes of the association conform to the requirements of this chapter and all laws have been complied with, the director or his designee shall so certify and retain and record, or file, the articles of incorporation and furnish the incorporators a preliminary certificate authorizing the association to solicit members as herein provided. Upon receipt of the certificate from the director or his designee, the association may solicit members for the purpose of completing its organization and shall collect from each applicant the amount of not less than one regular monthly payment, in accordance with its table of rates as provided by its constitution and bylaws and shall issue to each applicant a receipt for the amount so collected. The advanced payments must be credited to the mortuary or disability fund on account of the applicants. No part of the advanced payments may be used for expenses. The payments must, during the period of organization, be held in trust, and, if the organization is not completed within one year as herein provided, they must be returned to the applicants."
Name changed
SECTION 640. Section 38-37-240 of the 1976 Code is amended to read:
"Section 38-37-240. No preliminary certificate granted under Section 38-37-230 is valid one year after its date or after a further period, not exceeding one year, as may be authorized by the director or his designee, upon cause shown, unless the five hundred applicants required under Section 38-37-250 have been secured and the organization has been completed as provided. The articles of incorporation and all proceedings thereunder become null and void one year from the date of the preliminary certificate or at the expiration of the extended period, unless the society has completed its organization and obtained the required commercial business."
Name changed
SECTION 641. Section 38-37-250 of the 1976 Code is amended to read:
"Section 38-37-250. No fraternal benefit association may incur any liability other than for the advanced payments or issue any benefit certificate or pay or allow, or offer or promise to pay or allow, to any person any death or disability benefit until:
(1) Actual bona fide applications for death benefit certificates have been secured upon at least five hundred lives for at least one thousand dollars each, all applicants for death benefits have been regularly examined by licensed physicians, and certificates of examinations have been duly filed and approved by the chief medical examiner of the association;
(2) There have been established ten subordinate lodges or branches into which the five hundred or more applicants have been initiated;
(3) There has been submitted to the department, under oath of the president and secretary or corresponding officers of the association, a list of the applicants, stating their names, addresses, dates examined, dates approved, dates initiated, names and numbers of the subordinate branch of which each applicant is a member, amounts of benefits to be granted, and rates of stated periodic contributions, which must be sufficient to provide for (a) meeting the mortuary obligation contracted when valued for death benefits upon the basis of the National Fraternal Congress Table of Mortality, as adopted by The National Fraternal Congress, August 23, 1899, or by the American Men Ultimate Table of Mortality, with interest assumption not more than three and one-half percent per annum, or any higher standard at the option of the association, (b) disability benefits by tables based upon reliable experience, and (c) combined death and permanent total disability benefits by tables based upon reliable experience, with an interest assumption not higher than three and one-half percent per annum; and
(4) It has been shown to the director or his designee by the sworn statement of the treasurer or corresponding officer of the society that at least five hundred applicants have each paid in cash at least one regular monthly payment as herein provided per one thousand dollars of indemnity to be effected, which payments in the aggregate amount to at least two thousand five hundred dollars."
Name changed
SECTION 642. Section 38-37-260 of the 1976 Code is amended to read:
"Section 38-37-260. The director or his designee may make an examination and require any further information of a fraternal benefit association he considers advisable. Upon presentation of satisfactory evidence that the association has complied with the law, he shall issue to the association a certificate to that effect. The certificate is prima facie evidence of the existence of the association at the date of the certificate. The director or his designee shall cause a record of the certificate to be made. A certified copy of the record may be given in evidence with like effect as the original certificate."
Name changed
SECTION 643. Section 38-37-300 of the 1976 Code is amended to read:
"Section 38-37-300. If after examination the director or his designee is satisfied that a domestic fraternal benefit association (a) has failed to comply with this chapter, (b) is exceeding its powers, (c) is not carrying out its contracts in good faith, (d) is transacting business fraudulently, or (e) after being in existence for one year or more has less than four hundred members or has determined to discontinue business, the director or his designee may present the relevant facts to the Attorney General. If he considers the circumstances warrant, the Attorney General may commence an action in quo warranto in a court of competent jurisdiction. The court shall thereupon notify the officers of the association of a hearing. If it appears at the hearing that the association should be closed, the association must be enjoined from carrying on any further business, and the director or his designee must be appointed receiver of the association. The director or his designee must then immediately proceed to take possession of the books, papers, monies, and other assets of the association and, under the direction of the court, must immediately proceed to close the affairs of the association and to distribute its funds to those entitled to them. These proceedings may not be commenced by the Attorney General against an association until after notice has been duly served on the chief executive officers of the association and a reasonable opportunity has been given to it, on a date to be named in the notice, to show cause why the proceedings should not be commenced."
Name changed
SECTION 644. Article 5, Chapter 37, Title 38 of the 1976 Code is amended to read:
"Article 5
Licenses of Foreign Associations
Section 38-37-510. No foreign fraternal benefit association may transact any business in this State without a license from the director or his designee. On seeking admission to do business in this State a foreign association shall file with the department:
(1) A duly certified copy of its charter or articles of incorporation;
(2) A copy of its constitution and bylaws certified by its secretary or corresponding officer;
(3) A power of attorney to the director as hereinafter provided;
(4) A statement under oath by its president and secretary or corresponding officers in the form herein prescribed of its business for the preceding year;
(5) A copy of its application form, certificate of membership form, and all circulars in use by it;
(6) A certificate from the proper official in its home state, territory, district, province, or country that the association is legally organized, that it is authorized to transact business therein, and that it has the further qualifications required of domestic associations organized under this chapter and has its assets invested as required by the laws of the state, territory, district, province, or country in which it is organized; and
(7) Any other information the director or his designee may require.
Section 38-37-520. No foreign association not now licensed to do business in this State may be admitted hereafter to do business in this State unless its methods and plans are in accord with the standards recognized as applying to fraternal benefit associations and the director or his designee is satisfied that reasonable provision has been made to fulfill its contracts. However, the director or his designee may grant a license if he is otherwise satisfied that a license should be granted.
Section 38-37-530. When the director or his designee refuses to license a foreign association, he shall reduce his ruling, order, or decision to writing and file it in his office. The director or his designee shall furnish a copy of his ruling, order, or decision, together with a statement of his reasons, to the officers of the association.
Section 38-37-540. When the director or his designee, on investigation, is satisfied that a foreign fraternal benefit association transacting business under this chapter (a) has exceeded its powers, (b) has failed to comply with this chapter, (c) is conducting business fraudulently, or (d) is not carrying out its contracts in good faith, he shall notify the association of his findings and state in writing the grounds of his dissatisfaction and after reasonable notice require the association, on a date named, to show cause why its license should not be revoked. If on the date named in the notice the objections have not been removed to the satisfaction of the director or his designee or the association does not present good and sufficient reasons why its authority to transact business in this State should not at that time be revoked, the director or his designee may revoke the authority of the association to continue business in this State.
Section 38-37-550. Nothing contained in this chapter may be taken or construed as preventing a foreign association whose license to do business in this State has been revoked from continuing in good faith all contracts made in this State during the time the association was legally authorized to transact business in the state."
Name changed
SECTION 645. Section 38-37-710 of the 1976 Code is amended to read:
"Section 38-37-710. The authority of a fraternal benefit association authorized to transact business in this State which complies with this chapter terminates April first. However, a license continues in effect until a new license is issued or specifically refused. For each license or renewal the association shall pay the department one thousand dollars every two years. However, if the association has less than two hundred members, it shall pay the department a fee of one hundred dollars every two years for its license or renewal. A certified copy or duplicate of the license is prima facie evidence that the licensee is a fraternal benefit association within the meaning of this chapter."
Name changed
SECTION 646. Section 38-37-720 of the 1976 Code is amended to read:
"Section 38-37-720. Every fraternal benefit association transacting business under this chapter shall file with the department a duly certified copy of all amendments of or additions to its constitution and bylaws within ninety days after the enactment of the amendments or additions. Printed copies of the constitution and bylaws and of amendments of or additions thereto, certified by the secretary or corresponding officer of the association, are prima facie evidence of the legal adoption of the amendments or additions to the constitution or bylaws."
Name changed; etc.
SECTION 647. Section 38-37-900 of the 1976 Code is amended to read:
"Section 38-37-900. Every fraternal benefit association transacting business in this State shall annually file with the department by March first, in the form the director or his designee requires, a statement, under oath of its president and secretary or corresponding officers, of its condition and standing on the previous December thirty-first and of its transactions for the year ending on that date. It shall also furnish any other information the director or his designee considers necessary for a proper exhibit of its business and plan of working. The director or his designee may at other times require any further statement he may consider necessary to be made relating to the society."
Name changed
SECTION 648. Section 38-37-910 of the 1976 Code is amended to read:
"Section 38-37-910. The director or his designee or any person he may appoint has the power of visitation and examination into the affairs of any domestic fraternal benefit association. The examiner shall have free access to all the books, papers, and documents that relate to the business of the association and may summon and qualify as witnesses under oath and examine its officers, agents, and employees or other persons in relation to the affairs, transactions, and condition of the association. The expense of the examination must be paid by the association examined upon statement furnished by the director or his designee. The examination must be made at least once in three years."
Name changed
SECTION 649. Section 38-37-920 of the 1976 Code is amended to read:
"Section 38-37-920. Pending, during, or after an examination or investigation of a fraternal benefit association, either domestic or foreign, the director or his designee may not make public any financial statement, report, or finding, nor may he permit to become public any financial statement, report, or finding affecting the status, standing, or rights of the association, until a copy has been served upon the association, at its home office, nor until the association has been afforded a reasonable opportunity to answer any financial statement, report, or finding and to make any showing in connection therewith as it may desire."
Name changed
SECTION 650. Section 38-37-1310 of the 1976 Code is amended to read:
"Section 38-37-1310. In addition to the required annual report, each association shall annually report to the department a valuation of its certificates in force on the previous December thirty-first, excluding those issued within the year for which the report is filed, when the contributions for the first year in whole or in part are used for current mortality and expenses. This valuation report shall show as contingent liabilities the present midyear value of the promised benefits provided in the constitution and bylaws of the association under certificates then subject to valuation and as contingent assets the present midyear value of the future net contributions provided in the constitution and bylaws as they are in practice actually collected. At the option of the association, in lieu of the above, the valuation may show the net value of the certificates subject to valuation hereinbefore provided and such net value, when computed in the case of monthly contributions, may be the mean of the terminal values for the end of the preceding and of the current insurance years. This valuation must be certified by a competent accountant or actuary or, at the request and the expense of the association, verified by the actuary of the department of insurance of the home state of the association and must be filed with the department within ninety days after the submission of the annual report. Each valuation report shall set forth clearly and fully the mortality and interest basis and the method of valuation."
Name changed
SECTION 651. Section 38-37-1360 of the 1976 Code is amended to read:
"Section 38-37-1360. If the valuation of the certificates of a fraternal benefit association, on December 31, 1946, showed that the then present value of future net contributions, together with the admitted assets, was less than the then present value of the promised benefits and accrued liabilities, the association shall maintain this financial condition at each succeeding triennial valuation at a degree of deficiency not higher than shown in the valuation as of December 31, 1946. If at any succeeding triennial valuation the association does not show at least the same condition, the director or his designee shall direct that it thereafter comply with the requirements. If the next succeeding triennial valuation after the receipt of this notice shows that the association has failed to maintain the required condition, the director or his designee may, in the absence of good cause shown for the failure, institute proceedings for the dissolution of the association, in accordance with Section 38-37-300, or, in case of a foreign association, its license may be canceled in the manner provided in this chapter. An association shown by a triennial valuation after December 31, 1946, not to have maintained the required condition shall, within two years thereafter, make an improvement so as to show a percentage of deficiency not greater than as of December 31, 1946, or, thereafter, as to all new members admitted, the association is subject, so far as stated rates of contributors are concerned, to the provisions of Article 3 of this chapter applicable in the organization of new associations, in which event the net mortuary or beneficiary contributions and funds of the new members must be kept separate and apart from the other funds of the association. If the required improvement is not shown by the succeeding triennial valuation, then these new members may be placed in a separate class and their certificates valued as an independent association in respect of contributions and funds."
Name changed; etc.
SECTION 652. Article 13, Chapter 37, Title 38 of the 1976 Code is amended to read:
"Article 13
Consolidation, Merger, and Reinsurance
Section 38-37-1610. No fraternal benefit association organized under the laws of this State to do the business of life, accident, or health insurance may consolidate or merge with any other fraternal benefit association, reinsure its insurance risks or any part of its risks with any other fraternal benefit association, or assume or reinsure the whole or any portion of the risks of any other fraternal benefit association except as herein provided. No fraternal benefit association or subordinate body may merge or consolidate with, or be reinsured by, any company or association not licensed to transact business as a fraternal benefit association, nor with any company or association so licensed except with the director's or his designee's written approval.
Section 38-37-1620. When a fraternal benefit association proposes to consolidate or merge its business, to enter into any contract of reinsurance, or to assume or reinsure the whole or any portion of the risks of another fraternal benefit association, the proposed contract, in writing, setting forth the terms and conditions of the proposed consolidation, merger, or reinsurance must be submitted to the legislative or governing bodies of each of the parties to the contract after due notice. If approved, the contract as approved must be submitted to the director or his designee for his approval. The parties to the contract shall at the same time submit a sworn statement showing the financial condition of each association as of the thirty-first day of December preceding the date of the contract unless the director or his designee requires the financial statement to be submitted as of the last day of the month preceding the date of the contract. In case the parties to the contract have been incorporated in separate states or territories, the contract must be submitted to the official of each of the incorporating states or territories whose duties correspond most nearly to those of the director or his designee, to be considered and approved separately by each of these officials and the director or his designee.
Section 38-37-1630. The director or his designee shall thereupon consider the contract of consolidation, merger, or reinsurance. If the director or his designee is satisfied that the interests of the certificate holders of the fraternal association are properly protected, that the contract is just and equitable to the members of each of the associations, and that no reasonable objection exists, he shall approve the contract as submitted. When the contract of consolidation, merger, or reinsurance has been approved by the director or his designee and the officials of other states, if any, to whom it has been submitted pursuant to Section 38-37-1620, the director or his designee or the director or his designee and the other officials, as the case may be, shall issue a certificate to that effect, and thereupon the contract of consolidation, merger, or reinsurance is in full force and effect. If the contract is not approved, the fact of its submission and its contents may not be disclosed by the director or his designee.
Section 38-37-1640. All necessary and actual expenses and compensation incident to the proceedings provided by this article must be paid as provided by the contract of consolidation, merger, or reinsurance. However, no broker's fee or commission may be included in the expenses and compensation or may be paid to any person by any of the parties to the contract in connection with the negotiation or execution of it, nor may any compensation be paid to an officer or employee of any of the parties to the contract for directly or indirectly aiding in effecting the contract of consolidation, merger, or reinsurance. An itemized statement of all expenses must be filed with the department and any other official to whom the contract has been submitted pursuant to Section 38-37-1620, subject to approval, and when approved is binding on the parties thereto. Except as fully expressed in the contract of consolidation, merger, or reinsurance or in the itemized statement of expenses, as approved, no compensation may be paid to any person, and no officer or employee of the state may receive any compensation, directly or indirectly, for in any manner aiding, promoting, or assisting any consolidation, merger, or reinsurance.
Section 38-37-1650. Any person violating this article is guilty of a misdemeanor and, upon conviction, shall pay a fine of not more than five thousand dollars or must be imprisoned for not more than five years, or both."
Name changed; appeals, etc.
SECTION 653. Chapter 39, Title 38 of the 1976 Code is amended to read:
"CHAPTER 39
Insurance Premium Service Companies
Section 38-39-10. This chapter does not apply to:
(a) an insurer authorized to do business in this State;
(b) a banking institution, savings and loan association, cooperative credit union, or consumer finance company provided for in Sections 34-29-10 to 34-29-260 authorized to do business in this State;
(c) the inclusion of a charge for insurance in connection with an installment sale of goods or services;
(d) the advancing of premiums by insurance agents and producers of record under Article 3 of Chapter 43 of this title.
Section 38-39-20. (a) No person may engage in the business of servicing insurance premiums in this State without first obtaining a license from the director or his designee. Any person who engages in the business of servicing insurance premiums in this State without obtaining a license is guilty of a misdemeanor. Each transaction constitutes a separate offense.
(b) The annual license fee is five hundred dollars payable by March first to the department, to be deposited by the department in the state treasury.
(c) The person to whom the license is issued shall file sworn answers, subject to the penalties of perjury, to any interrogatories the director or his designee may require. The director or his designee has authority to require the applicant to disclose the identity of all stockholders, partners, officers, and employees. He may refuse to issue or renew a license in the name of any firm, partnership, or corporation if he is not satisfied that any officer, employee, stockholder, or partner of it who may materially influence the applicant's conduct meets the standards of this chapter.
Section 38-39-30. (a) Upon the filing of an application and the payment of the license fee the director or his designee shall make an investigation of the applicant and shall issue a license if the applicant is qualified. If the director or his designee does not find the applicant qualified, he shall, within thirty days after he has received the application, at the request of the applicant, give the applicant a full hearing.
(b) The director or his designee shall issue a license when he is satisfied that the person to be licensed:
(1) is competent and trustworthy and intends to act in good faith in the capacity involved by the license applied for;
(2) has a good business reputation and has had experience, training, or education so as to be qualified in the business for which the license is applied for;
(3) if a corporation, is a corporation incorporated under the laws of this State or a foreign corporation authorized to transact business in this State;
(4) has on deposit with the department a surety bond of fifty thousand dollars or has proven financial responsibility by depositing with the department acceptable securities of fifty thousand dollars. The bond or the deposit of securities must be held for the reimbursement of parties damaged through the acts, neglects, defaults, or insolvency of the premium service company;
(5) if directly or indirectly owned or controlled by, or affiliated with, an insurer, will not use the license to restrain trade or to secure an unfair competitive advantage or to falsify the insurer's financial condition or to render deceptive or misleading a financial statement of the insurer or, in any other way, to aid or assist the insurer in evading insurance laws or regulations;
(6) if a foreign corporation is regulated and examined by the appropriate department in its state of domicile.
(c) Each license is for an indefinite term, unless sooner revoked or suspended, if the annual license fee is paid by March first.
Section 38-39-40. (a) The director or his designee may revoke or suspend the license of an insurance premium service company after investigation if it appears to the director or his designee that:
(1) The license issued to the company was obtained by fraud;
(2) There was any misrepresentation in the application for the license;
(3) The holder of the license has otherwise shown himself untrustworthy or incompetent to act as a premium service company;
(4) The company has violated this chapter; or
(5) The company has been rebating directly or indirectly part of the service charge to an insurance agent or insurance broker or to an employee of an insurance agent or insurance broker or to any other person as an inducement to the financing of an insurance policy with the premium service company.
(b) Before the director or his designee revokes, suspends, or refuses to renew the license of a premium service company, he shall give the person an opportunity to be fully heard and to introduce evidence in his behalf. In lieu of revoking or suspending the license for any of the causes enumerated in this section, after a hearing, the director or his designee may subject the company to a monetary penalty as provided for in Section 38-2-10 for each offense when in his judgment he finds that the public interest would not be harmed by the continued operation of the company. The penalty must be paid to the department and must be deposited by the department in the state treasury. Any action by the director or his designee pursuant to this section may be appealed by the premium service company before the Administrative Law Judge Division.
Section 38-39-50. (a) Every licensed premium service company shall maintain records of its premium service transactions and the records must be open to examination and investigation by the director or his designee. The director or his designee may at any time require the company to bring any records he directs to his office for examination.
(b) Every licensed premium service company shall preserve its records, including cards used in a card system, for at least three years after making the final entry in respect to any premium service agreement. The preservation of records in photographic form constitutes compliance with this requirement.
Section 38-39-60. The department, after a public hearing, has authority to make and enforce any regulations necessary to carry out this chapter, but these regulations may not be contrary to nor inconsistent with this chapter.
Section 38-39-70. (a) A premium service agreement:
(1) Must be at least eight-point type for the printed portion;
(2) Must be dated and signed by the insured;
(3) Shall contain the name and place of business of the insurance agent or insurance broker negotiating the related insurance contract, the name and residence or the place of business of the insured as specified, the name and place of business of the premium service company to which payments are to be made, a description of the insurance contracts involved, and the amount of the premium; and
(4) Shall set forth the following, where applicable: (A) The total amount of the premiums;
(B) The amount of the down payment;
(C) The principal balance [the difference between subitems (A) and (B)];
(D) The amount of the service charge;
(E) The balance payable by the insured [sum of subitems (C) and (D)]; and
(F) The number of installments required, the amount of each installment expressed in dollars, and the due date or period thereof.
(b) The subitems set out in item (4) of subsection (a) need not be stated in the sequence or order in which they appear, and additional subitems may be included to explain the computations made in determining the amount to be paid by the insured.
(c) The minimum down payment for a premium service insurance contract may not be less than ten percent.
Section 38-39-80. (a) A premium service company may not write any insurance or sell any other service or commodity in connection with any premium service contract.
(b) A premium service company may not charge, contract for, receive, or collect a service charge other than as permitted by this chapter. (c) The service charge must be computed on the balance of the premiums due (after subtracting the down payment made by the insured in accordance with the premium service agreement) from the effective date of the insurance coverage, for which the premiums are being advanced, to and including the date when the final installment of the premium service agreement is payable.
(d) An initial charge of fifteen dollars per premium service contract is permitted which may not be refunded upon cancellation or prepayment.
(e) The service charge is at the rate of one percent per month computed on the remainder of the outstanding balance. However, in the event of cancellation by the borrower prior to maturity of the contract, the unearned service charge must be refunded on a short rate basis as determined by the department. With respect to the service charge for a premium service agreement which is for other than personal, family, or household purposes, the parties may contract for the payment by the debtor of a service charge at any rate, but no rate charged hereunder may be unconscionable. `Unconscionable' is defined as a rate substantially exceeding the usual and customary charge for financing insurance premiums.
(f) No premium service company may induce an insured to become obligated under more than one premium service agreement for the purpose of obtaining more than one nonrefundable fifteen-dollar charge, and no premium service company may intentionally cancel an insurance contract for the purpose of obtaining an additional fifteen-dollar nonrefundable charge on a new premium service agreement accepted within sixty days of the cancellation on the prior agreement.
(g) A premium service agreement may provide for the payment by the insured of a delinquency charge on each installment in default for a period of not less than five days of one dollar to a maximum of five percent of the installment; however, if the loan is primarily for personal family and household purposes the maximum amount of the delinquency charge may not exceed five dollars. Only one delinquency charge may be collected on an installment regardless of the period during which it remains in default.
Section 38-39-90. (a) When a premium service agreement contains a power of attorney enabling the company to cancel any insurance contract listed in the agreement, the insurance contract may not be canceled by the premium service company unless the cancellation is effectuated in accordance with this section.
(b) The premium service company shall mail the insured at least ten days' written notice of its intent to cancel the insurance contract unless the default is cured within the ten-day period.
(c) Not less than five days after the expiration of the notice, the premium service company may thereafter request in the name of the insured cancellation of the insurance contract by mailing to the insurer a notice of cancellation. The insurance contract must be canceled as if the notice of cancellation had been submitted by the insured himself, but without requiring the return of the insurance contract. The premium service company shall also mail a notice of cancellation to the insured at his last address as set forth in its records by the date the notice of cancellation is mailed to the insurer. This mailing constitutes sufficient proof of delivery.
(d) All statutory, regulatory, and contractual restrictions providing that the insurance contract may not be canceled unless notice is given to a governmental agency, mortgagee, or other third party apply where cancellation is effected under this section. The insurer shall give the prescribed notice in behalf of itself or the insured to any governmental agency, mortgagee, or other third party by the second business day after the day it receives the notice of cancellation from the premium service company and shall determine the effective date of cancellation taking into consideration the number of days' notice required to complete the cancellation.
(e) Whenever an insurance contract is canceled the insurer shall return whatever gross unearned premiums are due under the insurance contract to the premium service company which financed the premium for the account of the insured.
(f) If the crediting of return premiums to the account of the insured results in a surplus over the amount due from the insured, the premium service company shall hold the surplus in a fiduciary capacity and promptly refund the excess to the insured. No refund is required if it amounts to less than three dollars.
(g) Cancellations of insurance contracts by premium service companies must be effected exclusively by the forms, method, and timing set forth in this chapter.
Section 38-39-100. Filing of the premium service agreement is not necessary to perfect the validity of the agreement as a secured transaction as against creditors, subsequent purchasers, pledgees, encumbrances, successors, or assigns.
Section 38-39-110. The director or his designee shall approve all forms and rate charges of premium service companies in accordance with the standards prescribed in this chapter."
Name changed
SECTION 654. Chapter 41, Title 38 of the 1976 Code is amended to read:
"CHAPTER 41
Multiple Employer Self-Insured Health Plan
Section 38-41-10. As used in this chapter, `multiple employer self-insured health plan' means any plan or arrangement which is established or maintained for the purpose of offering or providing health, dental, or short-term disability benefits to employees of two or more employers but which is not fully insured. A plan or arrangement is considered `fully insured' only if all benefits payable are guaranteed under a contract or policy of insurance issued by an insurer authorized to transact business in this State.
Section 38-41-20. It is unlawful for any multiple employer self-insured health plan to transact business in this State without a license issued by the director or his designee. Any of the acts described in items (1) through (8) of Section 38-25-110, effected by mail or otherwise by or on behalf of a multiple employer self-insured health plan, constitutes the transaction of business in this State. Any multiple employer self-insured health plan which transacts business in this State without the license required by this chapter is considered to be an unauthorized insurer within the meaning of Chapter 25 of this title and all remedies and penalties prescribed therein are fully applicable.
This Chapter 41 does not apply to any plan or arrangement established or maintained by municipalities, counties, or other political subdivisions of the state or any multiple employer self-insured health plan which is not subject to the application of state insurance laws under the provisions of the Employee Retirement Income Security Act of 1974 (29 U.S.C., Sections 1001, et seq.).
A multiple employer self-insured health plan which was in existence prior to July 1, 1985, and which is associated with or organized or sponsored by a homogenous association exempt from taxation under United States Code, Title 26, Section 501(c)(6), and controlled by a board of directors a majority of whom are members of the association, is exempt from the requirements of this chapter and the insurance laws of this State. To prove exemption from taxation under 26 U.S.C., Section 501(c)(6), the association shall provide to the director or his designee a certificate issued by the United States Internal Revenue Service demonstrating the association's tax-exempt status.
Section 38-41-30. Application for a license must be made on forms prescribed by the director or his designee. No multiple employer self-insured health plan may be licensed unless it has and maintains a minimum of two hundred fifty covered employees.
Not later than March first of each year every multiple employer self-insured health plan shall pay to the department a license fee equal to two percent of the claims paid by the plan during the immediately preceding calendar year. All the funds collected by the department must be deposited in the general fund of the state.
Section 38-41-40. At the time application for a license is made, the multiple employer self-insured health plan shall file with the department a copy of the plan's bylaws, all schedules of benefits, and all management, administration, and trust agreements which the plan has made or proposes to make for the conduct of its business and affairs. Any proposed changes or amendments to the foregoing must also be filed with the department.
Section 38-41-50. A multiple employer self-insured health plan shall include aggregate excess stop-loss coverage and individual excess stop-loss coverage provided by an insurer licensed by the state. Aggregate excess stop-loss coverage shall include provisions to cover incurred, unpaid claim liability in the event of plan termination. The excess or stop-loss insurer shall bear the risk of coverage for any member of the pool that becomes insolvent with outstanding contributions due. In addition, the plan shall have a participating employer's fund in an amount at least equal to the point at which the excess or stop-loss insurer shall assume one hundred percent of additional liability. A plan shall submit its proposed excess or stop-loss insurance contract to the director or his designee at least thirty days prior to the proposed plan's effective date and at least thirty days subsequent to any renewal date. The director or his designee shall review the contract to determine whether it meets the standards established by this chapter and respond within a thirty-day period. Any excess or stop-loss insurance plan must be noncancellable for a minimum term of two years.
Section 38-41-60. Funds collected from the participating employers under multiple employer self-insured health plans must be held in trust subject to the following requirements:
(a) A board of trustees elected by participating employers must serve as fund managers on behalf of participants. Trustees must be plan participants. No participating employer may be represented by more than one trustee. A minimum of three and a maximum of seven trustees may be elected. Trustees may not receive remuneration but they may be reimbursed for actual and reasonable expenses incurred in connection with duties as trustee.
(b) Trustees must be bonded in an amount not less than one hundred fifty thousand dollars from a licensed surety company.
(c) Investment of plan funds is subject to the same restrictions which are applicable to insurers pursuant to Sections 38-11-40 and 38-11-50. All investments must be managed by a bank or other investment organization licensed to operate in South Carolina.
(d) Trustees, on behalf of the plan, shall file an annual report with the department by March first showing the condition and affairs of the plan as of the preceding thirty-first day of December. The report must be made on forms prescribed by the director or his designee. The report shall summarize the financial condition of the fund, itemize collections from participating employers, detail all fund expenditures, and provide any additional information which the director or his designee requires.
Section 38-41-70. A plan shall establish loss reserves for all incurred losses, both reported and unreported, and for unearned premiums, in the same manner required for health insurers under Sections 38-9-170 and 38-9-190.
A plan also shall establish a surplus account equal to the greater of:
(a) three times the average paid monthly premium during the plan's most recent fund year;
(b) for plans which do not yet have one fund year's experience, three times estimated monthly premium; or
(c) one hundred thousand dollars.
Section 38-41-80. Every multiple employer self-insured health plan shall make and keep a full and correct record of its business and affairs and the director or his representative shall inspect these records at least every three years. The information from these records must be furnished to the director or his representatives on demand and the original books or records must be open to examination by the director or his representatives when demanded.
Section 38-41-90. A plan that desires to cease existence shall apply to the director or his designee for authority to dissolve. Applications to dissolve must be on forms prescribed by the director or his designee and must be approved or disapproved by the director or his designee within sixty days of receipt. Dissolution without authorization is prohibited and does not absolve a plan or its participants from fulfilling the plan's continuing obligations. An application to dissolve must be granted if either of the following conditions is met:
(1) The plan demonstrates that it has no outstanding liabilities, including incurred but not reported liabilities.
(2) The plan has obtained an irrevocable commitment from a licensed insurer which provides for payment of all outstanding liabilities and for providing all related services, including payment of claims, preparation of reports, and administration of transactions associated with the period when the plan provided coverage.
Upon dissolution, after payment of all outstanding liabilities and indebtedness, the assets of the plan must be distributed to all employers participating in the plan during the last five years immediately preceding dissolution. The distributive share of each employer must be in the proportion that all contributions made by the employer during such five-year period bear to the total contributions made by all participating employers during such five-year period.
Section 38-41-100. The department may promulgate regulations which are necessary to implement the provisions of this chapter and to ensure the safe and proper operation of multiple employer self-insured health plans in this State.
Section 38-41-110. If the director or his designee is of the opinion that a multiple employer self-insured health plan is in an unsound condition, that it has failed to comply with the law or any applicable regulations or orders issued by the director or his designee, or that it is in a condition which renders its proceedings hazardous to the public or to persons covered under the plan, the director or his designee may, after a hearing, revoke or suspend the license of the plan or, in lieu thereof, impose a monetary penalty not to exceed five thousand dollars for each violation or ground.
If the director or his designee is of the opinion that any of the grounds set forth in the first paragraph of this section exists, he may commence delinquency proceedings against the plan and supervise, rehabilitate, or liquidate the plan in accordance with the procedures set forth in Chapter 27 of this title."
Name changed
SECTION 655. Section 38-43-20 of the 1976 Code is amended to read:
"Section 38-43-20. No person may act as agent for an insurer or for a fraternal benefit association unless an agent's license has been issued to him by the director or his designee, except for the following persons:
(a) an officer, employee, or secretary of a fraternal benefit association, as defined in Chapter 37 of this title, or any of its subordinate lodges or branches, who devotes substantially all of his services to activities other than the collection of premiums for fraternal insurance contracts and who receives for the solicitation of these contracts no commission or other compensation directly dependent upon the number or amount of contracts solicited or procured;
(b) a member representative of a fraternal benefit association which insures its members against death, dismemberment, and disability resulting from accident only and which pays no commission or other consideration for the collection of premiums for these contracts;
(c) a school teacher or school official who, without compensation, acts as agent for or performs any service in connection with the delivery or collection of insurance policies or premiums for accident and health insurance for children in the school system of the state where he is employed;
(d) a group insurance policyholder or employee of a group policyholder who acts as an agent or performs any service in connection with the collection of premiums or the delivery of insurance policies or certificates to the group insurance policyholder or his employees;
(e) an employee of a licensed agent who is under the agent's direct supervision or an employee of a licensed insurer, who performs solely clerical duties, and who is paid on an hourly or salary basis and not on a commission basis; or an agency office employee acting within the confines of the agent's office, under the direction and supervision of the licensed agent and within the scope of the agent's license, in the acceptance of request for insurance and payment of premiums and the performance of clerical, stenographic, and similar office duties; or
(f) an agent qualified to transact a life, health, or group insurance business may present a proposal for life, health, or group insurance to a prospective policyholder on behalf of an insurer for which the agent is not specifically licensed, and may also transmit an application for insurance to that insurer, if the insurer has previously furnished the proposal and application materials to the agent. By furnishing the proposal and application materials to the agent, the insurer is considered to have authorized the agent to act on its behalf, and the insurer is responsible for all actions of the agent as if the agent had been duly licensed for the insurer. Not more than fourteen days after the agent submits an application for insurance to the insurer, the insurer shall forward to the director or his designee its request that the agent be licensed as the insurer's agent in accordance with the requirements of this chapter."
Name changed
SECTION 656. Section 38-43-30 of the 1976 Code is amended to read:
"Section 38-43-30. Every agency, whether corporation, partnership, association, or other aggregation of individuals, transacting or purporting to transact the business of an insurance agent under a corporate or trade name must be licensed by the director or his designee. The term `agent' as used in this title is considered to include an agency, unless the context requires otherwise.
Every stockholder, officer, director, member, employee, or associate of an agency, performing any act of an agent as enumerated in Section 38-43-10, shall possess a current agent's license giving authority to transact that particular business."
Name changed
SECTION 657. Section 38-43-40 of the 1976 Code is amended to read:
"Section 38-43-40. A license issued by the director or his designee pursuant to Chapter 5 of this title gives to the insurer obtaining it the right to appoint any number of agents to take risks or transact any business of insurance in the state. However, the director or his designee must be notified of the appointment before the agent takes any risk or transacts any business. The notification shall give the post office address and residence of the agent."
Name changed
SECTION 658. Section 38-43-70 of the 1976 Code is amended to read:
"Section 38-43-70. (A) A nonresident of the state must not be licensed as an agent to do business in this State, except the director or his designee may enter into reciprocal agreements with the insurance commissioners of other states in regard to licensing of nonresident agents if in his judgment the arrangements or agreements are in the best interest of the state and if the applicant for the license meets the minimum statutory requirements of this State for the issuance of the license. However, the director or his designee may not enter into or continue a reciprocal agreement unless the other state is just as liberal as this State in licensing nonresident agents.
(B) The director or his designee may issue nonresident licenses to agents residing in a community comprised of two or more incorporated municipalities located partly within and partly without the state, or residing within twelve miles of the municipal limits of the municipalities, and permit the agents to write insurance in the state on the same basis as a resident licensed agent if the laws of the adjacent state are just as liberal in the licensing of residents of this State. All business so written is considered to have been transacted in accordance with the requirements of Section 38-43-60.
(C) A nonresident of this State who is a regular salaried officer or employee of a licensed insurer, except an insurer licensed to transact life or life and accident and health insurance, and who travels for his insurer in this State is not required to be licensed if all of the following apply:
(1) He has duties other than soliciting insurance.
(2) Policies of insurance written by him are countersigned by a licensed insurance agent who is a bona fide resident of this State.
(3) He receives no commission or other compensation directly dependent upon the amount of business obtained.
(4) His insurer-employer biennially registers with the department his name, business address, residence address, description of duties to be performed, and other information required by the director or his designee to be contained in the registration."
Name changed
SECTION 659. Section 38-43-100 of the 1976 Code is amended to read:
"Section 38-43-100. Before being issued a license to do business as an agent in this State for an insurer, each applicant shall make written application for the license upon forms to be furnished by the department, and all information on the forms required by the director or his designee must be subscribed to by the applicant under oath. No business may be done by the applicant except following issuance of an agent's license, and the license may not be issued until the director or his designee has determined that the applicant is qualified as an insurance agent, generally, and is particularly qualified for the line of business in which the applicant proposes to engage. The department shall promulgate regulations setting forth qualifying standards of agents as to all lines of business and shall require the local agent applicant to stand a written examination. The director or his designee may waive the examination with respect to applicants who have achieved the designations of Chartered Property and Casualty Underwriter (CPCU) or Chartered Life Underwriter (CLU). The director or his designee may also, at his discretion, waive the examination and issue temporary licenses for a period not to exceed ninety days, upon demonstrated need. An agent of a common carrier who sells only trip transportation ticket policies of accident and health insurance or baggage insurance on personal effects is not required to stand a written examination. No person who is a salaried employee and acts as an agent for a bank, savings and loan association, savings bank, finance company, trust company, credit union, automobile dealer, or other company handling credit transactions operating in this State, who writes credit life, credit accident and health insurance, credit property, or any combination of these in connection with a loan or other credit transaction, is required to stand a written examination. Any bank, finance company, or other company handling credit transactions operating in this State and utilizing one or more credit life or accident and health or credit property agents in a particular geographical area who are licensed without having taken the written examination is required to have readily available at least one credit life or accident and health or credit property agent to answer customers' questions concerning credit life, credit accident and health insurance, or credit property, or any combination of these. The director or his designee, subject to item (d) of this section if he is assured of the honesty and trustworthiness of the applicant by the insurer which the applicant will represent, shall issue a nonrenewable temporary life insurance agent's license valid for ninety days without requiring the applicant to pass a written examination, as follows:
(a) A temporary life insurance agent's license to the executor or administrator of the estate of a deceased person who at the time of his death was a licensed life insurance agent.
(b) A temporary life insurance agent's license to a surviving next of kin of a deceased life insurance agent, if no administrator or executor has been appointed and qualified, but any license issued under this item must be revoked upon issuance of a license to an executor or administrator under item (a).
(c) A temporary life insurance agent's license to an applicant who has filed a written application for a license on forms furnished by the department where the applicant will actually collect the premiums on debit life and health insurance contracts during the period of the temporary license. The license shall, with respect to the applicant's solicitation and sales activities during the license period, authorize only the solicitation and sale of debit life and health insurance contracts. If the temporary license is not received from the director or his designee within fifteen days from the date the application was mailed to the department, by certified or registered mail, the insurer may assume that the temporary license will be issued in due course. For the purpose of this item (c) a debit life and health insurance contract means a contract for which the premiums are payable at monthly or more frequent intervals directly by the owner, or by a person representing the owner, to a representative of the company.
(d) If more than twenty-five percent of the temporary licensees of an insurer fail to receive a permanent license, not counting those who fail the written examination twice, in any twelve-month period it is prima facie evidence that the insurer is abusing the privilege of obtaining temporary licenses. Upon a determination by the director or his designee of abuse being made, following a public hearing, no temporary license may be issued for twenty-four months following the month of the determination of abuse on behalf of the insurer."
Name changed
SECTION 660. Section 38-43-105 of the 1976 Code is amended to read:
"Section 38-43-105. (a) No applicant may be licensed as a local or general agent unless, within two years immediately preceding the date of his licensing, he has:
(1) Successfully completed classroom courses, or the equivalent thereof, in insurance approved by the director or his designee consisting of no less than forty classroom hours, or the equivalent thereof; or
(2) Had at least one year of insurance underwriting or marketing experience as an employee of an agent, insurer, or their managers or general agents in all lines of insurance for which he is making application to be licensed.
(b) Certification of qualification of the applicant must be made by an official of the school, college, insurance company, association, or other body conducting the course of study, or by the former employer for qualification under item (2) of subsection (a) of this section. The certification must be in a format approved by the director or his designee and submitted with the sponsoring company's appointment of the agent and the agent's application for an agent's license, except where a temporary license is requested pursuant to Section 38-43-100, in which event the temporary license may be issued without such certification, if the sponsoring company furnishes certification prior to the applicant's being granted permission to take the examination. The certification of qualification of the applicant must be made within thirty days from the date of receipt of the request to provide the certification.
(c) Any course or program of instruction or seminar developed or sponsored, or developed and sponsored, by any authorized insurer, recognized agents, association, or insurance trade association or any independent program of instruction shall, subject to the approval of the director or his designee, qualify for the equivalency of the number of classroom hours assigned thereto by the director or his designee.
(d) Any correspondence course approved by the director or his designee shall qualify for the equivalency of the number of classroom hours assigned thereto by the director or his designee.
(e) This section applies to residents applying for a license to engage in the sale of insurance except those persons who have previously been licensed for a period of five years or more and those persons applying for a license limited to the following types of insurance only or a combination thereof:
(1) credit life or credit accident and health;
(2) credit property;
(3) crop hail;
(4) automobile physical damage;
(5) mortgage guaranty or mortgage redemption, or both;
(6) title;
(7) travel accident and baggage
(8) Federal Crop Insurance Program."
Name changed; advisory committee provisions deleted; etc.
SECTION 661. Section 38-43-106 of the 1976 Code is amended to read:
"Section 38-43-106. (A) In addition to the requirements contained in Section 38-43-105, any applicant or agent licensed to sell property and casualty insurance or to sell life, accident and health insurance, or both, or qualified for this licensure, must complete biennially a minimum of twenty-four hours of continuing insurance education in order to be eligible for licensure for the following two years. However, if an agent is licensed in both property and casualty and life, accident and health, the agent must complete at least one-third of the twenty-four required biennial continuing insurance education hours in courses related to each of these types of licenses or qualification for licensure.
(B) The forty-hour prelicensing educational requirement contained in Section 38-43-105 is sufficient to fulfill the requirements of this section for up to the first two years. Any waiver of this forty-hour requirement, as provided in Section 38-43-105(a)(2), is sufficient to meet the continuing insurance education requirements of this section.
(C) The director or his designee shall administer these continuing education requirements and shall approve courses of instruction which qualify for these purposes. In administering this program, the department, in its discretion, may promulgate regulations whereby agents provide to a continuing education administrator established within the Department of Insurance proof of compliance with continuing education requirements as a condition of license renewal or, in the alternative, contract with an outside service provider to provide record-keeping services as the continuing education administrator. The costs of the continuing education administrator must be paid from the continuing insurance education fees paid by agents in the manner provided by this section, except that course approval responsibilities may not be designated to the continuing education administrator. The continuing education administrator shall compile and maintain, in conjunction with insurers and agents, records reflecting the continuing insurance education status of all licensed or qualified agents subject to the requirements of this section. The continuing education administrator shall furnish to the insurer, within ninety days of the agent's renewal date, as specified by regulation, a report of the continuing insurance education status of all of its agents. All licensed agents shall provide evidence of their continuing insurance education status to the continuing education administrator at least one hundred twenty days before the annual renewal date. Any continuing insurance education approved courses taken subsequent to one hundred twenty days before the renewal date must be applied to the following biennial continuing insurance education required period. The department shall promulgate regulations prescribing the overall parameters of continuing education requirements, and these regulations shall expressly authorize the director or his designee to recognize product-specific training offered by insurers, subject to those parameters and guidelines as are promulgated by the regulations. The director of the department may appoint an advisory committee to make recommendations with respect to courses offered for approval, but the director or his designee shall retain authority with respect to course approvals, subject to those regulations as are promulgated by the department.
(D) The license of any agent may not be renewed for any license year unless the agent has completed the mandated continuing insurance education requirements during the previous two-year accreditation period. Each insurer is responsible, annually at renewal, for furnishing to the department certification that its agents meet the continuing insurance education requirements. Insurers appointing individuals who are qualified but not currently licensed for any insurer are also required, in connection with the appointment of such an agent, to certify to the department that the agent meets the continuing insurance education requirements. Each agent is responsible for payment to the continuing education administrator of a reasonable annual fee for operation of the continuing insurance education program. These fees must be used to administer the provisions of this section.
(E) This section also applies to nonresident agents unless otherwise provided herein. However, any nonresident agent who successfully satisfies continuing insurance education requirements of his resident state and certifies this information to the continuing education administrator as specified in subsection (C) is deemed to have satisfied the requirements of this section regardless of the requirements of that other state.
(F) Insurance agents licensed solely for credit life or credit accident and health insurance, credit property insurance, crop hail insurance, automobile physical damage insurance, mortgage guaranty, or mortgage, title, travel accident and baggage, or the federal crop insurance are exempt from the provisions of this section. Insurance agents licensed solely for domestic insurance companies which have less than one million dollars in written premiums in any calendar year are exempt from the provisions of this section. Licensed special agents, or any or all of them, that the department by regulation shall specify are exempt from the provisions of this section.
(G) The department is authorized to promulgate regulations to implement the provisions of this section.
(H) A licensed agent reaching the age of fifty-five, with a minimum of twenty years of continuous licensure, is exempted from the requirements of this section as to the line or lines which are otherwise subject to the provisions of this section.
(I) All information received by the advisory committee in the course and scope of its duties must be treated as confidential and proprietary and not used or disclosed outside the requirements of the duties imposed on it by law."
Name changed
SECTION 662. Section 38-43-110 of the 1976 Code is amended to read:
"Section 38-43-110. An agent's license is for an indefinite term unless revoked, suspended, or terminated. If the biennial license fee for an agent is not paid at the time and in the manner the department provides by regulation, the license must be canceled. If the license is to be reinstated, an original application must be filed and a reinstatement fee equal to the biennial license fee unpaid must be paid in addition to the regular biennial license fee."
Name changed; references to Administrative Law Judge Division
SECTION 663. Section 38-43-130 of the 1976 Code is amended to read:
"Section 38-43-130. The director or his designee may revoke or suspend an agent's license after ten days' notice or refuse to reissue a license when it appears that an agent has been convicted of a crime involving moral turpitude, has violated this title or any regulation promulgated by the department, or has wilfully deceived or dealt unjustly with the citizens of this State.
For purposes of this section, `convicted' includes a plea of guilty or a plea of nolo contendere, and the record of conviction, or a copy of it, certified by the clerk of court or by the judge in whose court the conviction occurred is conclusive evidence of the conviction.
The words `deceived or dealt unjustly with the citizens of this State' include, but are not limited to, action or inaction by the agent as follows:
(1) misstating the facts in an application for insurance or aiding in the misstatement of the facts;
(2) failing to inform promptly the customer or insured of the correct premium or informing him of an incorrect premium based on the information furnished the agent by the customer or insured;
(3) failing to transmit promptly or pay all or a portion of the amount of an insurance premium when the agent or one of his employees has received payment from a customer or insured or someone on his behalf or when it has been financed by the agent;
(4) issuing his check covering all or a portion of an insurance premium which is not accepted by the bank on which it is written when it is initially submitted to the bank;
(5) failing to deliver promptly a policy, endorsement, or rider to any insured;
(6) failing to notify promptly the customer or insured if the agent has been unable to obtain the requested insurance for him;
(7) failing to maintain adequate records regarding insurance sought or obtained from or through the agent which can be examined by the director or his designee or one of his representatives for and on behalf of a citizen of this State.
When upon investigation the director or his designee finds that an agent has obtained a license by fraud or misrepresentation, he may suspend immediately the license. The director or his designee, in an order suspending a license, shall specify the period during which the suspension is to be in effect. The period may not exceed two years. No licensee whose license has been revoked or an applicant who has been refused a license by the director or his designee has the right to apply for another license within two years from the effective date of the revocation or refusal or, if judicial review before the Administrative Law Judge Division of the revocation or refusal is sought, within two years from the date of a final court order or decree affirming the revocation or suspension.
If, after notice of a hearing before the Administrative Law Judge Division or notice of an opportunity for hearing before the Administrative Law Judge Division, the director or his designee finds that one or more grounds exist for the revocation or suspension of, or the refusal to issue or reissue a license, the director or his designee, in his discretion, in lieu of revocation, suspension, or refusal, may impose upon the agent or applicant an administrative penalty as provided in Section 38-2-10 for each offense or ground.
The director or his designee may allow the agent or applicant a reasonable period, not to exceed thirty days, within which to pay to the director or his designee the amount of the penalty imposed. If the agent or applicant fails to pay the penalty in its entirety to the director or his designee at his office in Columbia within the period allowed, the license or application stands revoked, suspended, or renewal refused, as the case may be, upon expiration of the period and without any further proceedings."
Name changed; reference to Securities Commissioner
SECTION 664. Section 38-43-230 of the 1976 Code is amended to read:
"Section 38-43-230. Any person violating Section 38-43-210 or 38-43-220 may, in the discretion of the director or his designee or the Securities Commissioner, as the case may be, be suspended as a licensed insurance agent or licensed stockbroker for the period of time he considers proper, or either the director, his designee, or the Securities Commissioner may revoke the license immediately if he considers the violation merits this action."
Name changed
SECTION 665. Section 38-43-250 of the 1976 Code is amended to read:
"Section 38-43-250. All agents shall make and keep a full and correct record of the business done by them, showing the number, date, term, amount insured, premiums and the person to whom issued of every policy or certificate of renewal. The information from these records must be furnished to the director or his designee on demand and the original books or records are open to the inspection of the director or his designee on demand. These records must be kept for a minimum of five years."
Name changed
SECTION 666. Section 38-43-260 of the 1976 Code is amended to read:
"Section 38-43-260. Except as provided in this section, no agent may sign any blank contract or policy of insurance. Trip, travel, or transportation ticket policies of insurance covering accidental personal or property injury, loss, or damage may be countersigned in blank, or facsimile impression or stamp, for issuance only through coin-operated machines, subject to regulations prescribed by the department. Any agent guilty of violating this section must, upon conviction, be fined for each offense not more than two hundred dollars."
Name changed
SECTION 667. Section 38-44-30 of the 1976 Code is amended to read:
"Section 38-44-30. (A) No person may act in the capacity of a MGA with respect to risks located in this State for an insurer licensed in South Carolina unless the person is licensed as an agent for that insurer in this State.
(B) No person may act in the capacity of a MGA representing an insurer domiciled in this State with respect to risks located outside South Carolina unless the person is licensed properly as an agent or broker in that state and licensed as an insurance agent in this State for that insurer. The license may be a nonresident license.
(C) For the protection of the insurer, the director or his designee shall require the MGA to obtain a bond of fifty thousand dollars for each insurer represented."
Name changed
SECTION 668. Section 38-44-40(4) of the 1976 Code is amended to read:
"(4) Separate records of business written by the MGA must be maintained. The insurer must have access to and the right to copy all accounts and records related to its business in a form usable by the insurer. The director or his designee must have access to all books, bank accounts, and records of the MGA in a form usable to the director or his designee. The records must be retained according to Section 38-43-250."
Name changed
SECTION 669. Section 38-44-50 of the 1976 Code is amended to read:
"Section 38-44-50. (A) The insurer shall file annually with the department not later than March 1 an annual independent financial examination of each MGA with which it has done business, prepared by a certified public accountant in a form acceptable to the director or his designee.
(B) If a MGA establishes loss reserves, the insurer annually shall obtain the opinion of an actuary attesting to the adequacy of loss reserves established for losses incurred and outstanding on business produced by the MGA. The opinion must be filed not later than March 1. This is in addition to other required loss reserve certification.
(C) The insurer at least semi-annually by July 31 and December 31 shall conduct an on-site review of the underwriting and claims processing operations of the MGA.
(D) Binding authority for all assumed reinsurance contracts or participation in insurance or reinsurance syndicates rests with an officer of the insurer who must not be affiliated with the MGA.
(E) Within thirty days of entering into or termination of a contract with a MGA the insurer shall provide written notification of the appointment or termination to the department. Notices of appointment of a MGA must include a statement of duties which the applicant is expected to perform on behalf of the insurer, the lines of insurance for which the applicant is to be authorized to act, and other information the director or his designee may request. If the contract is terminated, notification must be given by the insurer within thirty days of the action to agents or brokers who have placed business with the MGA within the last twelve months.
(F) An insurer shall review its books and records each quarter to determine if an agent, as defined by Section 38-44-20(3), has become, by operation of that section, a MGA. If the insurer determines that an agent has become a MGA, the insurer promptly shall notify the agent and the department of the determination, and the insurer and agent shall comply fully with this chapter within thirty days.
(G) An insurer may not appoint to its board of directors an officer, a director, an employee, an agent, or a broker or a controlling shareholder of its MGA's. This subsection does not apply to relationships governed by the Insurance Holding Company Regulatory Act or, if applicable, the Broker Controlled Insurer Act."
Name changed; reference to Administrative Law Judge Division
SECTION 670. Section 38-44-70 of the 1976 Code is amended to read:
"Section 38-44-70. (A) If the director or his designee finds after a hearing conducted in accordance with Insurance Department Regulation 69-31 that a person has violated this chapter, the director or his designee may order:
(1) for each separate violation, a penalty as provided in Section 38-2-10;
(2) revocation or suspension of the agent's license of the MGA;
(3) the MGA to reimburse the insurer, the rehabilitator, or liquidator of the insurer for losses incurred by the insurer caused by a violation of this chapter committed by the MGA.
(B) The decision, determination, or order of the director or his designee pursuant to subsection (A) is subject to judicial review pursuant to Section 38-3-210, and the Administrative Procedures Act before the Administrative Law Judge Division.
(C) Nothing contained in this section affects the right of the director or his designee to impose other penalties in Title 38.
(D) Nothing contained in this chapter limits or restricts the rights of policyholders, claimants, and auditors."
Name changed
SECTION 671. Section 38-44-80 of the 1976 Code is amended to read:
"Section 38-44-80. The department may promulgate reasonable regulations for the implementation and administration of this chapter."
Name changed; submission of report
SECTION 672. Chapter 45, Title 38 of the 1976 Code is amended to read:
"CHAPTER 45
Insurance Brokers and Surplus Lines Insurance
Section 38-45-10. `Insurance broker' as used in this chapter means an individual licensed by the director or his designee to represent citizens of this State in placing their insurance. An insurance broker may place that insurance either with an eligible surplus lines insurer or with a licensed insurance agent in an insurance carrier licensed in this State.
Section 38-45-20. A resident may be licensed as an insurance broker by the director or his designee if the following requirements are met:
(1) licensure of the resident as an insurance agent for the same lines of insurance for which he proposes to apply as a broker of this State for at least two years;
(2) payment of a biennial license fee of two hundred dollars which is earned fully when received, not refundable;
(3) filing of a bond with the department in a form approved by the Attorney General in favor of South Carolina of ten thousand dollars executed by a corporate surety licensed to transact surety insurance in this State and personally countersigned by a licensed resident agent of the surety. The bond must be conditioned to pay a person insured or seeking insurance through the broker who sustains loss as a result of:
(a) the broker's violation of or failure to comply with an insurance law or regulation of this State;
(b) the broker's failure to transmit properly a payment received by him, cash or credit, for transmission to an insurer or an insured; or
(c) an act of fraud committed by the broker in connection with an insurance transaction. In lieu of a bond, the broker may file with the department certificates of deposit of ten thousand dollars of building and loan associations or federal savings and loan associations located within the state in which deposits are guaranteed by the Federal Savings and Loan Insurance Corporation, not to exceed the amount of insurance, or of banks located within the state in which deposits are guaranteed by the Federal Deposit Insurance Corporation, not to exceed the amount of insurance. An aggrieved person may institute an action in the county of his residence against the broker or his surety, or both, to recover on the bond or against the broker to recover from the certificates of deposit, and a copy of the summons and complaint in the action must be served on the director, who is not required to be made a party to the action;
(4) payment to the department, within thirty days after March thirty-first, June thirtieth, September thirtieth, and December thirty-first each year, of a broker's premium tax of four percent upon the premiums approved for policies of insurers not licensed in this State. Credit may be given for tax on policies canceled flat within forty-five days of the date of approval as long as the broker certifies to the director or his designee that the business was placed in good faith and the policy was canceled at the request of the insured.
Section 38-45-30. A nonresident may be licensed as an insurance broker by the director or his designee if the following requirements are met:
(1) filing an application on a form prescribed by the director or his designee;
(2) filing an affidavit stating he will not during the period of the license place, directly or indirectly, insurance on a risk located in this State except through licensed agents of insurers licensed to do business in this State;
(3) filing an affidavit stating he is a licensed broker in another state;
(4) paying a biennial license fee of two hundred dollars fully earned when received, not refundable;
(5) filing of a bond with the department in a form approved by the Attorney General in favor of South Carolina of ten thousand dollars executed by a corporate surety licensed to transact surety insurance in this State and personally countersigned by a licensed resident agent of the surety. The bond must be conditioned to pay a person insured or seeking insurance through the broker who sustains loss as a result of:
(a) the broker's violation of or failure to comply with an insurance law or regulation of this State;
(b) the broker's failure to transmit properly a payment received by him, cash or credit, for transmission to an insurer or an insured; or
(c) an act of fraud committed by the broker in connection with an insurance transaction. In lieu of a bond, the broker may file with the department certificates of deposit of ten thousand dollars of building and loan associations or federal savings and loan associations located within the state in which deposits are guaranteed by the Federal Savings and Loan Insurance Corporation, not to exceed the amount of insurance, or of banks located within the state in which deposits are guaranteed by the Federal Deposit Insurance Corporation, not to exceed the amount of insurance. An aggrieved person may institute an action in the county of his residence against the broker or his surety or both to recover on the bond or against the broker to recover from the certificates of deposit, and a copy of the summons and complaint in the action must be served on the director, who is not required to be made a party to the action;
(6) paying the department, within thirty days after March thirty-first, June thirtieth, September thirtieth, and December thirty-first each year, a broker's premium tax of four percent upon the premiums approved for policies of insurers not licensed in this State. Credit may be given for tax on policies canceled flat within forty-five days of the date of approval as long as the broker certifies to the director or his designee that the business was placed in good faith and the policy was canceled at the request of the insured.
Section 38-45-35. When an individual applies for an insurance broker's license he shall supply the department his business and residence address. The broker shall notify the department within thirty days of any change in these addresses.
Section 38-45-40. The director or his designee may enter into reciprocal agreements with the insurance commissioners of other states in regard to licensing of nonresident brokers if in his judgment the arrangements or agreements are in the best interest of the state and if the applicant for the license meets the minimum statutory requirements of this State for the issuance of a broker's license. However, the director or his designee may not enter into or continue any reciprocal agreement unless the other state is as liberal as this State in licensing nonresident brokers.
Section 38-45-50. Each license issued is for an indefinite term unless revoked or suspended. If the biennial license fee of a broker is not paid at the time and in the manner the department provides by regulation, the license must be canceled. If the license is to be reinstated, an original application must be filed and a reinstatement fee equal to the biennial license fee unpaid must be paid in addition to the regular biennial license fee.
Section 38-45-60. As soon after December thirty-first of each year as may be convenient, the director or his designee shall render an accounting to the state Treasurer of the broker's premium tax collected showing the counties in which the risk covered by the insurance is located and shall furnish a duplicate of the accounting to the Comptroller General. The Comptroller General shall draw his warrant on the State Treasurer for one-fourth of the broker's premium tax collected on property insurance, payable to the county treasurer of the county in which the property is located. The county treasurer shall distribute the broker's premium tax collected on property insurance in accordance with the requirements of Sections 23-9-360 and 23-9-470 and Sections 38-7-70 and 38-7-80.
Section 38-45-70. A broker's license entitles the holder to solicit insurance in any county of this State. However, municipalities may impose license fees in accordance with their ordinances.
Section 38-45-80. All brokers doing any kind of insurance business in this State shall make and keep a full and correct record of the business done by them, showing the number, date, term, amount insured, premiums, and the person to whom issued of every policy or certificate of renewal. The information from these records must be furnished to the director or his designee on demand and the original books or records are open to the inspection of the director or his designee on demand. These records must be kept for a minimum of five years.
Section 38-45-90. At the request of a licensed resident broker, the director or his designee may approve certain nonadmitted insurers as eligible surplus lines insurers to write business on risks located in this State that one or more insurers licensed in this State to write that line of business in this State have declined to write. The director or his designee may require the broker to submit, on behalf of the insurer, documents necessary to satisfy him that the insurer is licensed in its home state, that it is solvent, and that its operation is not hazardous to the policyholders. The director or his designee may require the broker or the insurer to file additional documents at any given time to maintain the insurer's status as an eligible surplus lines insurer. The director or his designee may withdraw his approval at any time the insurer fails to meet any of the requirements. The department shall list all eligible surplus lines insurers in its annual report to the Director of the Department of Insurance who shall submit this report to the General Assembly. While the insurer maintains its status as an eligible surplus lines insurer, a duly licensed resident broker may, under the terms of this chapter, place business with the insurer. An insurance broker shall exercise due care in the placing of insurance. Each broker shall annually file with the department within thirty days after December thirty-first a detailed report of this business. The report must be in the form the director or his designee prescribes. The broker's books, papers, and accounts must at all times be open to the inspection of the director or his appointee.
Section 38-45-100. A licensed insurance broker may divide commissions with agents or brokers in other states or with an agent licensed in this State for an insurer doing the particular class of insurance desired to be placed through the broker.
Section 38-45-110. Within twenty days after placing of insurance with an eligible surplus lines insurer, or the effective date of the policy, whichever comes first, a broker shall file with the department a written request for approval of the placement. The request must be filed on forms furnished by the department. The broker shall write or stamp upon the face of each policy and application of an eligible surplus lines insurer the words `This company not licensed to do business in this State and not afforded guaranty fund protection'. If for any reason the director or his designee disapproves the placement, the broker shall refund the full premium to the policyholder. In the event the broker fails to file the request for approval in the time required, the director or his designee may impose a penalty not to exceed five percent of the total premium.
Section 38-45-120. Every insurance broker who sells an insurance policy written or issued by an insurer not licensed to do business in this State is personally liable for the limits of the coverage provided for in the policy if the broker fails to comply with the provisions of this title relating to policies issued by insurers not licensed to do business in this State.
Section 38-45-130. All losses occurring under policies placed through an insurance broker may be adjusted by a licensed agent or adjuster in this State. All inspections of property and endorsements on policies may be made by a licensed broker or any other licensed insurance agent in this State authorized to do so.
Section 38-45-140. When the director or his designee determines after investigation that a broker has violated this title, he may, upon ten days' notice, impose the penalties provided in Section 38-2-10.
Section 38-45-150. Any person violating this chapter is guilty of a misdemeanor. Each risk written in violation of this chapter is considered a separate offense.
Section 38-45-160. No policy fee may be charged by a broker unless it is a reasonable fee, it is made part of the contract, and the four percent broker's premium tax is paid upon the policy fee. If for any reason the director or his designee disapproves the placement or the insurer ultimately refuses to write the risk, the broker shall immediately refund the full policy fee to the policyholder.
Section 38-45-170. Before the director or his designee approves a nonadmitted insurer as an eligible surplus lines insurer, the insurer shall appoint in writing the director and his successors in office to be its true and lawful attorney upon whom all legal process in any action or proceeding against it must be served and in this writing shall agree that any lawful process against it which is served upon this attorney is of the same legal force and validity as if served upon the insurer and that the authority continues in force so long as any liability remains outstanding in the state. Copies of the appointment, certified by the director, are sufficient evidence of the appointment and must be admitted in evidence with the same force and effect as the original might be admitted."
Name changed
SECTION 673. Section 38-46-20(10)(c) of the 1976 Code is amended to read:
"(c) has been determined by either the director or his designee or the Securities Valuation Office of the National Association of Insurance Commissioners to meet the standards of financial condition and standing considered necessary and appropriate to regulate the quality of financial institutions whose letters of credit are acceptable to the director or his designee."
Name changed
SECTION 674. Section 38-46-30 of the 1976 Code is amended to read:
"Section 38-46-30. (A) No person may act as a reinsurance intermediary-broker in this State if he maintains an office directly or as a member or an employee of a firm or an association or as an officer, a director, or an employee of a corporation in:
(1) this State unless the reinsurance intermediary-broker is a licensed producer in this State; or
(2) another state unless the reinsurance intermediary-broker is a licensed producer in that state and is licensed in this State as a reinsurance intermediary. The license may be a nonresident license.
(B) No person may act as a reinsurance intermediary-manager:
(1) for a reinsurer domiciled in this State, unless the reinsurance intermediary-manager is a licensed producer in this State;
(2) in this State if the reinsurance intermediary-manager maintains an office directly or as a member or an employee of a firm or an association or an officer, a director, or an employee of a corporation in this State unless the reinsurance intermediary-manager is a licensed producer in this State;
(3) in another state for a foreign insurer, unless the reinsurance intermediary-manager is a licensed producer in that state and is licensed in this State as a reinsurance intermediary. The license may be a nonresident license.
(C) For the protection of the reinsurer, the director or his designee shall require a reinsurance intermediary-manager subject to subsection (B) to file a fifty thousand dollar bond for each reinsurer represented. The bond must be issued by an insurer acceptable to the director or his designee.
(D)(1) The director or his designee may issue a reinsurance intermediary license to a person who has:
(a) demonstrated compliance with the requirements of this chapter;
(b) completed satisfactorily an application for a license on forms prepared by the director or his designee;
(c) paid a licensing fee of one hundred dollars in connection with the issuance or annual renewal of the license.
(2) If the applicant for a reinsurance intermediary license is a nonresident, the applicant, as a condition precedent to receiving or holding a license, shall designate a resident of this State upon whom notices or orders of the director or his designee or process affecting the nonresident reinsurance intermediary may be served. The licensee shall notify the department in writing within thirty days of every change in its designated agent for service of process, and the change does not become effective until acknowledged by the director or his designee.
(E) The director or his designee may refuse to issue a reinsurance intermediary license if, in his judgment, the applicant, a person named on the application, or a member, a principal, an officer, or a director of the applicant is not trustworthy or a controlling person of the applicant is not trustworthy to act as a reinsurance intermediary or if one or more of the foregoing has given cause for revocation or suspension of the license or has failed to comply with a prerequisite for the issuance of the license. Upon written request the director or his designee shall furnish a summary of the basis for refusal to issue a license. No reinsurance intermediary license may be refused except on reasonable notice and opportunity to be heard afforded the applicant. An applicant whose application has been denied may appeal as provided in Section 38-3-210.
(F) Licensed attorneys of this State when acting in their professional capacity are exempt from this section."
Name changed
SECTION 675. Section 38-46-60 of the 1976 Code is amended to read:
"Section 38-46-60. (A) An insurer may not engage the services of a person, a firm, an association, or a corporation to act as a reinsurance intermediary-broker on its behalf unless the person is licensed as required by Section 38-46-30.
(B) An insurer may not employ an individual who is employed by a reinsurance intermediary-broker with which it transacts business unless the reinsurance intermediary-broker is under common control with the insurer and subject to the Insurance Holding Company Regulatory Act.
(C) The insurer annually shall file with the department not later than March first a copy of the statements of the financial condition of each reinsurance intermediary-broker which the insurer has engaged. The statements must be prepared by an independent certified accountant in a form acceptable to the director or his designee."
Name changed
SECTION 676. Section 38-46-70 of the 1976 Code is amended to read:
"Section 38-46-70. Transactions between a reinsurance intermediary-manager and the reinsurer it represents in that capacity only may be entered into pursuant to a written contract specifying the responsibilities of each party, which must be approved by the reinsurer's board of directors. No contract by which a reinsurer assumes or cedes business through a reinsurance intermediary-manager may be entered into unless the insurer has notified the department in writing at least thirty days in advance of its intention to enter into the contract, has furnished a true copy of the contract to the director or his designee, and the director or his designee has not disapproved it within the thirty days. The contract, at a minimum, must provide:
(1) The reinsurer may terminate the contract for cause upon written notice to the reinsurance-intermediary manager. The reinsurer immediately may suspend the authority of the reinsurance intermediary-manager to assume or cede business during the pendency of a dispute regarding the cause for termination.
(2) The reinsurance intermediary-manager shall render accounts to the reinsurer accurately detailing all material transactions, including information necessary to support all commissions, charges, and other fees received by or owing to the reinsurance intermediary-manager and remit all funds due under the contract to the reinsurer within thirty days.
(3) All funds collected for the reinsurer's account must be held by the reinsurance intermediary-manager in a fiduciary capacity in a bank which is a qualified United States financial institution. The reinsurance intermediary-manager may retain no more than ninety days estimated claims payments and allocated loss adjustment expenses. The reinsurance intermediary-manager shall maintain a separate bank account for each reinsurer that it represents.
(4) For at least ten years after expiration of each contract of reinsurance transacted by the reinsurance intermediary-manager, he shall keep a complete record for each transaction showing:
(a) the type of contract, limits, underwriting restrictions, classes or risks, and territory;
(b) the period of coverage, including effective and expiration dates, cancellation provisions, notice required of cancellation, and disposition of outstanding reserves on covered risks;
(c) reporting and settlement requirements of balances;
(d) the rate used to compute the reinsurance premium;
(e) the names and addresses of reinsurers;
(f) the rates of all reinsurance commissions, including the commissions on retrocessions handled by the reinsurance intermediary-manager;
(g) related correspondence and memoranda;
(h) proof of placement;
(i) the details regarding retrocessions handled by the reinsurance intermediary-manager, as permitted by Section 38-46-90(D), including the identity of retrocessionaires and percentage of each contract assumed or ceded;
(j) financial records, including, but not limited to, premium and loss accounts;
(k) when the reinsurance intermediary-manager places a reinsurance contract on behalf of a ceding insurer:
(i) directly from an assuming reinsurer, written evidence that the assuming reinsurer has agreed to assume the risk; or
(ii) if placed through a representative of the assuming reinsurer other than an employee, written evidence that the reinsurer has delegated binding authority to the representative.
(5) The reinsurer must have access and the right to copy all accounts and records maintained by the reinsurance intermediary-manager related to its business in a form usable by the reinsurer.
(6) The contract must not be assigned in whole or in part by the reinsurance intermediary-manager.
(7) The reinsurance intermediary-manager shall comply with the written underwriting and rating standards established by the insurer for the acceptance, rejection, or cession of all risks.
(8) The rates, terms, and purposes of commissions, charges, and other fees which the reinsurance intermediary-manager may levy against the reinsurer must be set forth.
(9) If the contract permits the reinsurance intermediary-manager to settle claims on behalf of the reinsurer:
(a) All claims must be reported to the reinsurer in a timely manner.
(b) A copy of the claim file must be sent to the reinsurer at its request or as soon as it becomes known that the claim:
(i) has the potential to exceed fifty thousand dollars or the limit set by the reinsurer, whichever is less;
(ii) involves a coverage dispute;
(iii) may exceed the reinsurance intermediary-manager's claims settlement authority;
(iv) is open for more than six months; or
(v) is closed by payment of fifty thousand dollars or an amount set by the reinsurer, whichever is less;
(c) All claim files must be the joint property of the reinsurer and reinsurance intermediary-manager. However, upon an order of liquidation of the reinsurer the files become the sole property of the reinsurer or its estate. The reinsurance intermediary-manager must have reasonable access to and the right to copy the files on a timely basis.
(d) Settlement authority granted to the reinsurance intermediary-manager may be terminated for cause upon the reinsurer's written notice to the reinsurance intermediary-manager or upon the termination of the contract. The reinsurer may suspend the settlement authority during the pendency of the dispute regarding the cause of termination.
(10) If the contract provides for a sharing of interim profits by the reinsurance intermediary-manager, interim profits must not be paid until one year after the end of each underwriting period for property business and five years after the end of each underwriting period for casualty business, or a later period set by the director or his designee for specified lines of insurance, and not until the adequacy of reserves on remaining claims has been verified pursuant to Section 38-46-90(C).
(11) The reinsurance intermediary-manager annually shall provide the reinsurer with a statement of its financial condition prepared by an independent certified accountant.
(12) The reinsurer at least semi-annually shall conduct an on-site review of the underwriting and claims processing operations of the reinsurance intermediary-manager.
(13) The reinsurance intermediary-manager shall disclose to the reinsurer relationships it has with an insurer before ceding or assuming business with the insurer pursuant to this contract.
(14) Within the scope of its actual or apparent authority the acts of the reinsurance intermediary-manager are considered to be the acts of the reinsurer on whose behalf it is acting."
Name changed
SECTION 677. Section 38-46-90 of the 1976 Code is amended to read:
"Section 38-46-90. (A) A reinsurer may not engage the services of a person, a firm, an association, or a corporation to act as a reinsurance intermediary-manager on its behalf unless the person is licensed as required by Section 38-46-30.
(B) The reinsurer annually shall file with the department not later than March first a copy of statements of the financial condition of each reinsurance intermediary-manager, which the reinsurer has engaged, prepared by an independent certified accountant in a form acceptable to the director or his designee.
(C) If a reinsurance intermediary-manager establishes loss reserves, the reinsurer annually shall obtain the opinion of an actuary attesting to the adequacy of loss reserves established for losses incurred and outstanding on business produced by the reinsurance intermediary-manager. The opinion must be filed not later than March first. This opinion is in addition to other required loss reserve certification.
(D) Binding authority for all retrocessional contracts or participation in reinsurance syndicates rests with an officer of the reinsurer who must not be affiliated with the reinsurance intermediary-manager.
(E) Within thirty days of termination of a contract with a reinsurance intermediary-manager, the reinsurer shall provide written notification of termination to the department.
(F) A reinsurer may not appoint to its board of directors an officer, a director, an employee, a controlling shareholder, or a subproducer of its reinsurance intermediary-manager. This subsection does not apply to relationships governed by the Insurance Holding Company Regulatory Act or, if applicable, the Broker Controlled Insurer Act."
Name changed
SECTION 678. Section 38-46-100 of the 1976 Code is amended to read:
"Section 38-46-100. (A) A reinsurance intermediary is subject to examination by the director or his designee. The director or his designee must have access to all books, bank accounts, and records of the reinsurance intermediary in a form usable to the director or his designee.
(B) A reinsurance intermediary-manager may be examined as if he were the reinsurer."
Name changed
SECTION 679. Section 38-46-110 of the 1976 Code is amended to read:
"Section 38-46-110. (A) A reinsurance intermediary, insurer, or reinsurer found by the director or his designee after a hearing conducted in accordance with Insurance Department Regulation 69-31 to be in violation of this chapter:
(1) for each separate violation, shall pay a penalty of not more than fifteen thousand dollars and thirty thousand dollars if the violation is wilful;
(2) is subject to revocation or suspension of its license;
(3) for a violation committed by the reinsurance intermediary, make restitution to the insurer, reinsurer, rehabilitator, or liquidator of the insurer or reinsurer for the net losses incurred by the insurer or reinsurer attributable to the violation.
(B) The decision, determination, or order of the director or his designee pursuant to subsection (A) is subject to judicial review pursuant to Section 38-3-210.
(C) This section does not affect the right of the director or his designee to impose other penalties provided by Title 38.
(D) This chapter does not limit or restrict the rights of policyholders, claimants, creditors, or other third parties or confer rights to those persons."
Name changed
SECTION 680. Section 38-46-120 of the 1976 Code is amended to read:
"Section 38-46-120. The department may promulgate reasonable regulations for the implementation and administration of this chapter."
Name changed
SECTION 681. Chapter 47, Title 38 of the 1976 Code is amended to read:
"CHAPTER 47
Insurance Adjusters
Section 38-47-10. Every individual commonly called an adjuster, adjusting losses for an insurer licensed to do business in this State, must be licensed by the director or his designee. These individuals shall apply for a license on a form prescribed by the director or his designee. The director or his designee shall satisfy himself that each applicant for an adjuster's license is an individual of good moral character, has sufficient knowledge of the insurance business and his duties as an adjuster, has not violated the insurance laws of the state, and is a fit and proper individual for the position. No license may be issued to a nonresident adjuster who resides in a state refusing to license South Carolina adjusters.
Agents licensed under Chapter 43 are not required to comply with this section.
Section 38-47-15. When an individual applies for an adjuster's license he shall supply the department his business and residence address. The adjuster shall notify the department within thirty days of any change in these addresses.
Section 38-47-20. The director or his designee may enter into reciprocal agreements with the insurance commissioners of other states in regard to licensing of nonresident adjusters if in his judgment such arrangements or agreements are in the best interest of the state and if the applicant for an adjuster's license meets the minimum statutory requirements of this State for the issuance of a license. However, the director or his designee may not enter into or continue any reciprocal agreement unless the other state is just as liberal as this State in licensing nonresident adjusters.
Section 38-47-30. The fee for an adjuster's license is eighty dollars payable in advance and fully earned when received, not refundable, transferable, nor proratable. However, when the laws of another state of the United States require South Carolina adjusters to pay a license fee greater than the fee required in this State of nonresident adjusters, the nonresident adjuster shall pay an amount equal to the amount of charges imposed by the laws of his state upon adjusters of this State.
Section 38-47-40. An adjuster's license is for an indefinite term unless sooner revoked or suspended if the biennial license fee is paid at the time and in the manner which the department provides by regulation. If the license fee for an adjuster is not received when due, the license must be canceled. If the license is to be reinstated, an original application must be filed and a reinstatement fee equal to the biennial license fee unpaid must be paid in addition to the regular biennial license fee.
Section 38-47-50. Adjusters are declared to be acting as the agents for the company or companies represented by them in the adjustment of any loss.
Section 38-47-60. If any person acts as adjuster on a contract made otherwise than as authorized by the laws of this State or by an insurer or other person not regularly licensed to do business in the state or adjusts or aids in the adjustment, either directly or indirectly, of a claim arising under a contract of insurance not authorized by the laws of the state, he is guilty of a misdemeanor.
Section 38-47-70. When the director or his designee determines after investigation that there has been a violation of this title by an adjuster, upon ten days' notice, he may impose the penalties provided in Section 38-2-10.
Section 38-47-80. Every property or casualty insurance company transacting business in this State shall at all times maintain in the state at least one resident adjuster for the purpose of investigation and settlement of claims. The name, current address, and current telephone number of the adjuster so employed must be maintained on file with the department by the company which information must be available to the public. Any change in the name, address, or telephone number of the adjuster must be reported to the department by the insurance company within thirty days. Failure to maintain the adjuster on file as required herein is grounds for the director or his designee to revoke the company's authorization to do business in this State."
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SECTION 682. Section 38-49-20 of the 1976 Code is amended to read:
"Section 38-49-20. No person may act as an appraiser for motor vehicle physical damage claims on behalf of an insurer or firm or corporation engaged in the adjustment or appraisal of motor vehicle claims unless he has secured first a license from the director or his designee and has paid a biennial license fee of eighty dollars fully earned when received, not refundable, transferable, nor proratable. The department may prescribe reasonable regulations concerning standards for qualification, suspension, or revocation of licenses and the methods by which licensees shall conduct their business."
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SECTION 683. Section 38-51-20 of the 1976 Code is amended to read:
"Section 38-51-20. No person may act as an administrator in this State without first being licensed by the director or his designee.
Any person who acts as an administrator without a license is guilty of a misdemeanor and upon conviction must be fined not more than ten thousand dollars or imprisoned for not more than two years, or both, and is subject to revocation of any insurance licenses issued by the director or his designee.
Application for a license must be upon forms prescribed by the director or his designee and must be accompanied by an initial license fee of one hundred dollars. Thereafter, the administrator shall pay to the department a license renewal fee of one hundred dollars by March first of each year.
Before granting any license, the director or his designee must be satisfied that the administrator is competent, trustworthy, financially responsible, has a good personal and business reputation, has not had an insurance license revoked, suspended, or denied in any jurisdiction within the preceding five years, and has not been convicted of a crime involving fraud, dishonesty, or moral turpitude in any jurisdiction. For purposes of this section, `convicted' includes a plea of guilty or a plea of nolo contendere.
The director or his designee may revoke or suspend any license issued to an administrator when he finds that any condition exists which would have prohibited issuance of the original license, that the administrator has violated any provision of this chapter, or that the administrator has deceived or dealt unjustly with the citizens of this State. In lieu of revocation or suspension of license, the director or his designee may impose an administrative monetary penalty not to exceed one thousand dollars for each offense."
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SECTION 684. Section 38-51-30 of the 1976 Code is amended to read:
"Section 38-51-30. Every administrator shall file and maintain with the department a surety bond in favor of the state executed by a surety company authorized to transact business in this State. In lieu of bond, the administrator may file with the department letters of credit, certificates of deposit of building and loan associations or federal savings and loan associations located within the state in which deposits are guaranteed by the Federal Savings and Loan Insurance Corporation, not to exceed the amount of insurance, or of banks located within the state in which deposits are guaranteed by the Federal Deposit Insurance Corporation, not to exceed the amount covered by insurance or any other financial instrument that the director or his designee deems appropriate. The director or his designee may also in his sole discretion accept in lieu of a bond or certificates of deposit or letter of credit a corporate guaranty by an insurer licensed to transact business in this State. The corporate guaranty must meet any requirements the director or his designee requires. The director or his designee may withdraw his acceptance of a corporate guaranty in lieu of bonds or certificates of deposit at any time. The amount of the bond, certificates of deposit, corporate guaranty letter of credit, or any other instrument the director or his designee deems appropriate, filed with the department must be in the amount of seventy-five thousand dollars. The bond must be on a form approved by the director or his designee. Any of the above-described financial instruments must be conditioned to pay any person who sustains a loss as a result of (a) the administrator's violation of or failure to comply with any requirement of this chapter; (b) the administrator's failure to transmit properly any payment received by it for transmission to an insurer or other person; (c) the administrator's misapplication or misappropriation of funds received by it; or (d) any act of fraud or dishonesty committed by the administrator in the administration of an insurance benefit plan. Any aggrieved person may institute an action in the county of his residence against the administrator or his surety, or both, to recover on the bond or to recover from the certificates of deposit or corporate guaranty or letters of credit. Nothing in this section may be construed to prohibit agreements between administrators and insurers providing for additional bonds. The director or his designee may waive the bonding requirements of this section in whole or in part to the extent that funds handled by the administrator are handled on behalf of a licensed insurance company, if the administrator has furnished a bond or other security to the insurance company which meets the purposes of this section. Under no circumstances may the director or his designee waive the bonding requirements of this section with respect to funds handled by the administrator on behalf of self-insured persons, groups, or entities."
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SECTION 685. Section 38-51-60 of the 1976 Code is amended to read:
"Section 38-51-60. Every administrator shall maintain at its principal administrative office for the duration of the written agreement referred to in Section 38-51-40 and five years thereafter adequate books and records of all transactions among the administrator, insurers, and insured persons. The books and records must be maintained in accordance with prudent standards of insurance record keeping. The director or his designee shall have access to the books and records for the purpose of examination, audit, and inspection, and information from the records must be furnished to the director or his designee on demand. Any trade secrets contained therein, including, but not limited to, the identity and addresses of policyholders and certificate holders, are confidential, except that the director or his designee may use the information in any proceedings instituted against the administrator. The insurer shall retain the right to continuing access to the books and records of the administrator sufficient to permit the insurer to fulfill all of its contractual obligations to insured persons, subject to any restrictions in the written agreement between the insurer and administrator on the proprietary rights of the parties in such books and records."
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SECTION 686. Section 38-53-10(11) of the 1976 Code is amended to read:
"(11) `Surety bondsman' means any person who is approved by and licensed by the director or his designee as an insurance agent, appointed by an insurer by power of attorney to execute or countersign bail bonds for the insurer in connection with judicial proceedings, and receives or is promised money or other things of value for the execution or countersignature."
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SECTION 687. Section 38-53-20 of the 1976 Code is amended to read:
"Section 38-53-20. The director or his designee, clerks of court, and the State Law Enforcement Division have full power and authority to administer those provisions of this chapter for which they are charged with implementing. The department shall promulgate regulations to enforce the purposes and provisions of this chapter. The director may hire employees, examiners, investigators, and other assistants as he considers necessary and shall prescribe their duties."
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SECTION 688. Section 38-53-80 of the 1976 Code is amended to read:
"Section 38-53-80. No person may act in the capacity of a bail bondsman or runner or perform any of the functions, duties, or powers prescribed for bail bondsmen or runners under the provisions of this chapter unless that person is qualified and, except as regards an accommodation bondsman, licensed in accordance with the provisions of this chapter. No license may be issued to a professional bondsman or runner except as provided in this chapter.
The applicant shall apply for a license or renewal of a license on forms prepared and supplied by the director or his designee. The director or his designee may ask the applicant any questions, written or otherwise, relating to his qualifications, residence, prospective place of business, and any other inquiries which, in the opinion of the director or his designee, are necessary in order to protect the public and ascertain the qualifications of the applicant. The director or his designee shall request that the State Law Enforcement Division conduct any reasonable investigation relative to the determination of the applicant's fitness to be licensed or to continue to be licensed.
The failure of the applicant to secure approval of the director or his designee does not preclude him from applying as many times as he desires, but no application may be considered by the director or his designee within one year subsequent to the date upon which the director or his designee denied the last application."
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SECTION 689. Section 38-53-90 of the 1976 Code is amended to read:
"Section 38-53-90. Before a license is issued to an applicant permitting him to act as a professional bondsman or runner, the applicant shall furnish the director or his designee a complete set of his fingerprints and a recent passport size full-face photograph of himself. The applicant's fingerprints must be certified by an authorized law enforcement officer. Before being issued the license, every applicant for a license as a professional bondsman or runner shall satisfy the director or his designee that he:
(a) is eighteen years of age or older;
(b) is a resident of this State;
(c) is a person of good moral character and has not been convicted of a felony or any crime involving moral turpitude within the last ten years;
(d) has knowledge, training, or experience of sufficient duration and extent to satisfy reasonably the director or his designee that he possesses the competence necessary to fulfill the responsibilities of a licensee."
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SECTION 690. Section 38-53-100 of the 1976 Code is amended to read:
"Section 38-53-100. (a) A license fee of four hundred dollars must be paid to the director or his designee with each application for license as a professional bondsman. The first year after enactment the director or his designee shall forward four hundred dollars to the State Treasurer to be placed in the general fund; however, of the four hundred dollars, the amount of two hundred dollars must be paid over to the director or his designee to offset those costs he incurs under the provisions of this chapter, and two hundred dollars must be paid over to the State Law Enforcement Division to offset those costs it may incur under the provisions of this chapter. Any applicant paying the initial license fee required by this section prior to July 1, 1987, is not required to pay any license renewal fee prior to July 1, 1987.
(b) A license fee of two hundred dollars must be paid to the director or his designee with each application for a license as a runner. The first year after enactment, the director or his designee shall forward two hundred dollars to the State Treasurer to be placed in the general fund; however, of the two hundred dollars, the amount of one hundred dollars must be paid over to the director or his designee to offset those costs he incurs under the provisions of this chapter, and one hundred dollars must be paid over to the State Law Enforcement Division to offset those costs it incurs under the provisions of this chapter. Any applicant paying the initial license fee required by this section prior to July 1, 1987, is not required to pay any license renewal fee prior to July 1, 1987.
(c) Beginning the second year after enactment, the director or his designee shall forward forty percent of all fees collected under subsections (a) and (b) of this section to the clerk of court of the county where the principal place of business of the bondsman or runner is located. The remaining sixty percent of collected fees must be forwarded to the State Treasurer to be placed in the general fund of which one-third must be paid to the State Law Enforcement Division and two-thirds paid to the director or his designee to offset expenses incurred under the provisions of this chapter.
(d) In addition to the fees herein provided, a bondsman shall pay to the clerk of court of any county where he is doing business other than the county of his principal place of business the sum of one hundred dollars annually to be paid directly to and retained by the clerk. Any applicant paying the initial license fee required by this section prior to July 1, 1987, is not required to pay any license renewal fee prior to July 1, 1987."
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SECTION 691. Section 38-53-110 of the 1976 Code is amended to read:
"Section 38-53-110. In addition to the other requirements of this chapter, an applicant for a professional bondsman's license shall furnish annually a detailed financial statement under oath and in a form as the director or his designee may require. The statement is subject to the same examination as is prescribed by law for domestic insurance companies."
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SECTION 692. Section 38-53-130 of the 1976 Code is amended to read:
"Section 38-53-130. Except as provided in this chapter, an applicant for a license to be a professional bondsman or runner is required to take a written examination testing his ability and qualifications. The examination may be prepared and administered by the director or his designee, or the director or his designee may, in his discretion, enter into an arrangement with a competent outside testing authority for the administration of the examinations. In the event that the director or his designee enters into an arrangement with an outside testing authority to administer examinations, the scope, content, and subject matter of the examination administered, as well as all registration, fee, and test procedure requirements of the outside testing authority, at all times, are subject to the approval of and modification by the director or his designee. The failure of an applicant to pass an examination does not preclude him from taking subsequent examinations; however, at least six months must elapse between such examinations."
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SECTION 693. Section 38-53-140 of the 1976 Code is amended to read:
"Section 38-53-140. All licenses issued pursuant to the provisions of this chapter expire annually on June thirtieth unless revoked or suspended prior to that time by the director or his designee or upon notice served upon the director or his designee that the
employer of any runner has canceled the licensee's authority to act for the employer.
A renewal license must be issued by the director or his designee to a licensee who has continually maintained his license in effect without further examination upon the payment of a renewal fee of two hundred dollars in the case of runners and four hundred dollars in the case of professional bondsmen, but the licensees are required in all other respects to comply with the provisions of this chapter. After the receipt of the licensee's application for renewal, the current license continues in effect until the renewal license is issued or denied for cause."
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SECTION 694. Section 38-53-150 of the 1976 Code is amended to read:
"Section 38-53-150. (a) The director or his designee may deny, suspend, revoke, or refuse to renew any license issued under this chapter for any of the following causes:
(1) for any cause sufficient to deny issuance of the original license;
(2) violation of any laws of this State relating to bail in the course of dealings under the license issued him by the director or his designee;
(3) material misstatement, misrepresentation, or fraud in obtaining the license;
(4) misappropriation, conversion, or unlawful withholding of monies belonging to insurers or others and received in the conduct of business under the license;
(5) fraudulent or dishonest practices in the conduct of business under the license;
(6) conviction of a felony within the last ten years regardless of whether the conviction resulted from conduct in or related to the bail bond business;
(7) failure to comply with or violation of the provisions of this chapter or of any order of the director or his designee or regulation of the department;
(8) when in the judgment of the director or his designee the licensee has in the conduct of his affairs under the license demonstrated incompetency or untrustworthiness, that he is no longer in good faith carrying on the bail bond business, or that he is guilty of rebating, offering to rebate, or offering to divide the premiums received for the bond;
(9) for failing to pay any judgment or decree rendered on any forfeited undertaking in any court of competent jurisdiction;
(10) for charging or receiving as premium or compensation for the making of any deposit or bail bond any sum in excess of that permitted by this chapter;
(11) for requiring as a condition of his executing a bail bond that the principal agree to engage the services of a specified attorney.
(b) The director or his designee, in lieu of revoking or suspending a license in accordance with the provisions of this chapter, in any one proceeding, by order, may require the licensee to pay to the director or his designee to be deposited in the general fund of the state a monetary penalty as provided in Section 38-2-10(2) for each offense. Upon failure of the licensee to pay the penalty within twenty days after the mailing of the order, postage prepaid, registered, and addressed to the last known place of business of the licensee, unless the order is stayed by an order of a court of competent jurisdiction, the director or his designee may revoke the license of the licensee or may suspend the license for a period as he determines."
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SECTION 695. Section 38-53-160 of the 1976 Code is amended to read:
"Section 38-53-160. No license may be refused, suspended, or revoked, or renewal refused, except on reasonable notice and opportunity to be heard afforded the person licensed or seeking renewal of the license. Any applicant for a license as a bail bondsman or runner whose application has been denied or whose license has been suspended or revoked, or renewal of the license denied, has the right of appeal from the final order of the director or his designee to the Administrative Law Judge Division as provided by law."
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SECTION 696. Section 38-53-170(f) of the 1976 Code is amended to read:
"(f) solicit business in any of the courts or on the premises of any of the courts of this State, in the office of any magistrate, or in or about any place where prisoners are confined. Law enforcement officers and jailers shall report any violations of this provision to the court. Any action taken pursuant to this provision resulting in a conviction, guilty plea, or plea of nolo contendere pursuant to Section 38-53-340 must be reported to the director or his designee by the court within thirty days;"
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SECTION 697. Section 38-53-200 of the 1976 Code is amended to read:
"Section 38-53-200. A bail bondsman may not sign or countersign blank bail bonds, nor may he give a power of attorney to, or otherwise authorize, anyone to countersign his name to bonds unless the person so authorized is a licensed bondsman or runner directly employed by the bondsman giving power of attorney. Copies of all the powers of attorney and revocations of the powers of attorney must be filed immediately with the department and the clerk of the circuit court of the county in the state where the bondsman giving the power of attorney is currently writing or is obligated on bail bonds."
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SECTION 698. Section 38-53-210 of the 1976 Code is amended to read:
"Section 38-53-210. Every insurer shall annually, prior to July first, furnish the clerk of court a list of all surety bondsmen appointed by it to write bail bonds on its behalf. Every insurer who subsequently appoints a surety bondsman in the state shall give notice of the appointment to the director or his designee and clerk of court of any county where the bondsman is doing business. All appointments are subject to the issuance of the proper insurance agent's license to the appointee.
An insurer terminating the appointment of a surety bondsman shall file written notice of the termination with the department, together with a statement that it has given or mailed notice to the surety bondsman and to the clerks of the Circuit Courts of the counties in the state where the insurer has been obligated on bail bonds through the agent within the past three years. Notice filed with the department shall state the reasons, if any, for termination. Information so furnished the director or his designee is privileged and may not be used as evidence in, or as the basis for, any action against the insurer or any of its representatives."
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SECTION 699. Section 38-53-220 of the 1976 Code is amended to read:
"Section 38-53-220. Any bail bondsman who discontinues writing bail bonds during the period for which he is licensed shall notify the clerks of the Circuit Courts with whom he is registered and return his license to the director or his designee for cancellation within thirty days after discontinuance."
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SECTION 700. Section 38-53-230 of the 1976 Code is amended to read:
"Section 38-53-230. Every person licensed as a bail bondsman may appoint as runner any person who has been issued a runner's license. Each bail bondsman shall before July second of each year furnish to the clerk of court of each county where he is doing business and the director or his designee a list of all runners appointed by him. Each bail bondsman who, subsequent to the filing of this list, appoints additional persons as runners shall file written notice with the clerk of court of each county where he is doing business and the director or his designee of the appointment.
A bail bondsman terminating the appointment of a runner shall file written notice of the termination with the clerk of court and the director or his designee together with a statement that he has given or mailed notice to the runner. Notice filed with the clerk of court and the director or his designee shall state the reasons, if any, for termination. Information so furnished the director or his designee is privileged and may not be used as evidence in any action against the bail bondsman."
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SECTION 701. Section 38-53-310 of the 1976 Code is amended to read:
"Section 38-53-310. Each professional bail bondsman shall file with the clerk of court of the county of his principal place of business and any other county where he is doing business a written report in a form prescribed by the director or his designee regarding all bail bonds on which he is liable as of the first day of each month showing:
(a) each individual bonded;
(b) the date the bond was given;
(c) the principal sum of the bond;
(d) the state or local official to whom given;
(e) the fee charged for the bonding service in each instance. The report must be filed before the sixteenth day of each month."
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SECTION 702. Section 38-53-320 of the 1976 Code is amended to read:
"Section 38-53-320. Whenever the director or his designee considers it necessary he shall visit and examine or cause to be visited and examined by some competent person appointed by him for that purpose any professional bail bondsman subject to the provisions of this chapter. For this purpose the director or his designee or person making the examination has free access to all books and papers of the bondsman that relate to his business and to the books and papers kept by any of his agents or runners."
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SECTION 703. Section 38-55-20 of the 1976 Code is amended to read:
"Section 38-55-20. Every insurer shall conduct its business in the state in, and the policies and contracts of insurance issued by it must be headed or entitled only by, its proper or corporate name. Two or more authorized insurers may, with the approval of the director or his designee, issue a combination policy which shall contain provisions substantially as follows:
(1) That the insurers executing the policy are severally liable for the full amount of any loss or damage, according to the terms of the policy, or for specified percentages or amounts thereof aggregating the full amount of insurance under the policy; and
(2) That service of process or of any notice or proof of loss required by the policy upon any of the insurers executing the policy constitutes service upon all the insurers."
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SECTION 704. Section 38-55-40 of the 1976 Code is amended to read:
"Section 38-55-40. No insurer may issue in this State, nor permit its agents, officers, and employees to issue in this State, agency company stock or other stock or securities or any special or advisory bond or other contract of any kind promising returns and profits, as an inducement to the taking of insurance. No insurer is authorized to do business in this State which issues or permits its agents, officers, or employees to issue in any state or territory agency company stock or securities or any special or advisory bond or other contract of any kind, promising returns and profits as an inducement to the taking of insurance. No corporation or stock company, acting as agent of an insurer, nor any of its agents, officers, and employees, is permitted to sell or give, agree to sell or give, or offer to sell or give, directly or indirectly, in any manner whatsoever, any share of stock, security, bond, or agreement of any form or nature promising returns and profits as an inducement to the taking of insurance or in connection therewith. The director or his designee, upon being satisfied that any insurer or its agent has violated this section, shall impose the penalties provided in Section 38-2-10. This section does not apply to marine insurers or their agents if the agents write only marine insurance."
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SECTION 705. Section 38-55-60 of the 1976 Code is amended to read:
"Section 38-55-60. Every officer or agent of an insurer doing business in this State who violates Section 38-55-50 is guilty of a misdemeanor. The director or his designee, upon being satisfied that the insurer, its agent, or an insurance broker has violated Section 38-55-50, shall impose the penalties provided in Section 38-2-10."
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SECTION 706. Section 38-55-80 of the 1976 Code is amended to read:
"Section 38-55-80. An insurer doing business in this State may not make a loan to any of its directors or officers, either directly or indirectly, in any manner, except as provided in this section, and its director or officer may not accept any loan, directly or indirectly. The insurer may not make an advance to any of its directors or officers for future services to be performed beyond a period of one year from the date of making the advance. Nothing contained in this section prohibits a life insurer from making a policy loan upon its policy or contract in an amount not exceeding the net reserve or cash value of the policy or contract.
This section does not prohibit an insurer in connection with the relocation of the place of employment of an officer, including any relocation in connection with the initial employment of the officer, from (a) making, or the officer from accepting, a mortgage loan to the officer on real property owned by the officer which is to serve as his residence or (b) acquiring, or the officer from selling to it, at not more than the fair market value, the residence of the officer. Mortgage loans made or residences acquired under this section are subject to the limitations imposed on investments by Section 38-11-50. In addition, this section does not prohibit an insurer from making a loan to its directors or officers if the loan is first approved in writing by the director or his designee.
An officer or director of an insurer who violates this section, either by participating in making the loan or by the accepting of a loan except as authorized in this section, is guilty of a misdemeanor.
Any loan made by an insurer to its officers, directors, or employees shall bear the same rate of interest as is available to the public on loans from the insurer."
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SECTION 707. Section 38-55-120 of the 1976 Code is amended to read:
"Section 38-55-120. If an insurer fails to pay a final judgment rendered against it within fifteen days after the judgment becomes final, upon written application of the holder of the judgment the director or his designee shall give fifteen days' written notice to the insurer to pay the judgment and, upon the insurer's failure to pay the judgment within the time, shall revoke the license of the insurer to do business in this State and impound its bond or securities required to be deposited under Sections 38-9-80 through 38-9-140 or Section 38-15-30. In the event the director or his designee revokes the license of the insurer, he shall take any steps he considers necessary for the protection of the insurer's policyholders in this State. A judgment creditor may proceed with the collection of his judgment out of the securities in the possession of the director or his designee or the bond filed with him."
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SECTION 708. Section 38-55-140 of the 1976 Code is amended to read:
"Section 38-55-140. When an insurer has surrendered its charter or when its charter has been revoked or canceled for any reason, it is still subject to suit under the laws of this State until all outstanding claims and demands against it have been settled. The director or his designee is designated the agent upon whom service of process may be had."
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SECTION 709. Section 38-55-180 of the 1976 Code is amended to read:
"Section 38-55-180. No agent, collector, solicitor, or other employee or representative of an insurer issuing contracts providing for sick, accident, or death benefits and operating on the weekly or monthly industrial plan is considered the owner of any part of the weekly or monthly debit collected by him or that may be under his charge, care, control, or supervision. The debit is considered wholly the property of the insurer in whose name the policies, contracts, or obligations were written or assumed. No former agent, collector, solicitor, superintendent, or other employee or representative of the insurer, within a period of ninety days after the termination of his employment with the insurer, may barter, sell, give, or in any manner transfer to any person or insurer any part of any debit of the insurer or any policies or contracts of the insurer, without the written consent of the insurer formerly employing him. The director or his designee shall revoke the license of any person violating this section."
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SECTION 710. Section 38-57-150(2) of the 1976 Code is amended to read:
"(2) Subsection (1) does not prohibit a licensed agent who is registered under Chapter 1 of Title 35 from offering to sell shares of or interests in mutual funds in connection with or as reference to a policy or annuity contract if the agent, at the time of the offer, gives the prospective buyer a written prospectus which has been filed with and approved by the director or his designee and the Securities Commissioner."
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SECTION 711. Section 38-57-200 of the 1976 Code is amended to read:
"Section 38-57-200. If, after a hearing, the director or his designee determines that a method of competition or an act or practice is unfair or deceptive as defined in this title and that the person complained of has engaged in the method of competition, act, or practice in violation of this title, he shall reduce his finding to writing and shall issue and cause to be served upon the person charged with the violation:
(1) an order requiring the person to cease and desist from engaging in the method of competition, act, or practice; and
(2) an order imposing penalties provided in Section 38-2-10."
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SECTION 712. Section 38-57-210 of the 1976 Code is amended to read:
"Section 38-57-210. Upon good cause shown, the director or his designee shall permit any person to intervene, appear, and be heard at the hearing by counsel or in person. If the report of the director or his designee does not charge a violation of this chapter, then any intervenor in the proceedings may, within thirty days after the service of the report, cause a petition to be filed in the Circuit Court of Richland County for a review of the report. Upon review the court has authority to issue appropriate orders and decrees in connection therewith, including, if the court finds that it is to the interest of the public, orders enjoining and restraining the continuance of any method of competition, act, or practice which it finds, notwithstanding the report of the director or his designee, constitutes a violation of this chapter."
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SECTION 713. Section 38-57-220 of the 1976 Code is amended to read:
"Section 38-57-220. If any person asks to be excused from attending and testifying or from producing any books, papers, records, correspondence, or other documents at any hearing on the ground that the testimony or evidence required of him may tend to incriminate him or subject him to any penalty or forfeiture and is, notwithstanding, directed to give the testimony or produce the evidence, he shall comply with the direction, but he may not thereafter be prosecuted or subjected to a penalty or forfeiture for or on account of any transaction, matter, or thing concerning which he may testify or produce evidence pursuant thereto. No testimony so given or evidence produced may be received against him upon any criminal action, investigation, or proceeding. The individual so testifying is not exempt from prosecution or punishment for any perjury committed by him while so testifying, and the testimony or evidence so given or produced is admissible against him upon any criminal action, investigation, or proceeding concerning the perjury, nor is he exempt from the refusal, revocation, or suspension of any license, permission, or authority conferred or to be conferred pursuant to this title. The individual may execute, acknowledge, and file in the office of the department a statement expressly waiving his immunity or privilege in respect to any transaction, matter, or thing specified in the statement and thereupon the testimony of the person or the evidence in relation to the transaction, matter, or thing may be received or produced before any judge or justice, court, tribunal, grand jury, or otherwise, and, if so received or produced, the individual is not entitled to any immunity or privilege on account of any testimony he may so give or evidence so produced."
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SECTION 714. Section 38-57-230 of the 1976 Code is amended to read:
"Section 38-57-230. Any person who contemptuously violates a cease and desist order of any practice issued by the director or his designee shall, upon due notice, receive a hearing before the director or his designee. Upon the determination of the director or his designee that the contemptuous violation has been committed, the director or his designee shall issue his order to the effect that the person is in contempt of his order to cease and desist. Any person who contemptuously violates a cease and desist order of the director or his designee shall pay a fine set by the director or his designee but not to exceed fifty dollars for each day of violation. However, if the violation is wilful, the fine may be assessed in an amount not to exceed one hundred dollars per day of violation."
Name changed
SECTION 715. Section 38-57-240 of the 1976 Code is amended to read:
"Section 38-57-240. If upon completion of the hearing the director or his designee has elected to levy a fine on the person involved, that person must be so notified in writing by certified mail and of the amount of the fine. The notice shall state that, if the fine is not paid within thirty days from the date of receipt of the notice, further action to effect collection under this chapter will be initiated, together with revocation of the person's license or certificate of authority."
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SECTION 716. Section 38-57-250 of the 1976 Code is amended to read:
"Section 38-57-250. When the time for appeal has expired and no appeal has been perfected by the person fined, the director or his designee shall file with the clerk of court of the county in which the person fined resides and for any other county in which he may own personal or real property, or an interest therein, a copy of the order. The clerk shall enter in the judgment roll, in the column for judgment debtors, the name of the person fined and in appropriate columns the amount of the fine and costs for which the order calls and the date when the copy was filed and shall index the order upon the judgment roll index. The order has the full effect of a civil judgment including rights of the judgment creditor to issue execution and accrue interest at the legal rate until the time as it is satisfied."
Name changed
SECTION 717. Section 38-57-260 of the 1976 Code is amended to read:
"Section 38-57-260. If the fine remains unpaid after filing the order, the director or his designee shall levy on the real or personal property or any interest he may have therein, by issuing execution to the sheriff of the county of residence of the person fined. The sheriff shall proceed upon the execution with like effect and in the same manner prescribed by law with respect to executions issued against property upon judgments of a court of record. The sheriff is entitled to a fee equivalent to five percent of the total amount of the warrant for service in executing the order and the clerk of court is entitled to the same fees for recording the order as one prescribed by law in respect to executions issued against property upon judgments of a court of record. These fees are to be added to and collected with the total amount of the order."
Name changed
SECTION 718. Section 38-57-270 of the 1976 Code is amended to read:
"Section 38-57-270. If an order is returned not satisfied in full, the director or his designee has the same remedies to enforce the claim for the fine and costs against the person fined as if the people of the state had recovered judgment against the person fined for the amount of the fine and costs."
Name changed
SECTION 719. Section 38-57-280 of the 1976 Code is amended to read:
"Section 38-57-280. When the director or his designee levies a fine against a person and takes action to effect collection of the fine under this chapter, that person may pay the fine under written protest if he considers the fine to be unjust or illegal. Upon the protested payment being made, the director or his designee shall pay the fine into the state treasury, giving the State Treasurer notice at that time that the payment was made under protest."
Name changed
SECTION 720. Section 38-57-290 of the 1976 Code is amended to read:
"Section 38-57-290. Any person paying a fine levied by the director or his designee, under protest, may at any time within thirty days after payment, but not afterwards, bring an action against the director or his designee for the recovery thereof in the court of common pleas of the county in which the fine was payable. If it is determined in that action that the fine was wrongfully or illegally levied and collected, for any reason going to the merits, the court before whom the case is tried shall certify of record that the fine was wrongfully collected and should be refunded and thereupon the Comptroller General shall issue his warrant for the refunding of the fine so paid."
Name changed
SECTION 721. Section 38-57-300 of the 1976 Code is amended to read:
"Section 38-57-300. The Attorney General shall defend any suit or proceeding against the director or his designee for the recovery of fines allegedly illegally or unjustly paid under this title. Any judgment against the director or his designee must be paid in the manner prescribed in Section 38-57-290."
Name changed
SECTION 722. Section 38-57-310 of the 1976 Code is amended to read:
"Section 38-57-310. In any action or proceeding against the director or his designee for the purpose of recovering a fine allegedly illegally or unjustly collected, the amount received in the suit may not exceed the amount of the fine paid under protest, together with costs arising from the service of process and procuring the attendance of witnesses."
Name changed
SECTION 723. Section 38-59-30 of the 1976 Code is amended to read:
"Section 38-59-30. If, after due notice and hearing, the director or his designee determines that the insurer has engaged in any of the improper claim practices defined in Section 38-59-20, he shall order the insurer to cease and desist from the practice and may impose a penalty as provided in Section 38-2-10. If the penalty is imposed, the penalty may not be considered a cost of the insurer for purposes of determining whether or not the rates of the insurer warrant adjustment."
Name changed; etc.
SECTION 724. Chapter 61, Title 38 of the 1976 Code is amended to read:
"CHAPTER 61
Insurance Contracts Generally
Section 38-61-10. All contracts of insurance on property, lives, or interests in this State are considered to be made in the state and all contracts of insurance the applications for which are taken within the state are considered to have been made within this State and are subject to the laws of this State.
Section 38-61-20. (A) It is unlawful for an insurer doing business in this State to issue or sell in this State any policy, contract, or certificate until it has been filed with and approved by the director or his designee. The director or his designee may disapprove the form if it (1) does not meet the requirements of law, (2) contains any provisions which are unfair, deceptive, ambiguous, misleading, or unfairly discriminatory, or (3) is going to be solicited by means of advertising, communication, or dissemination of information which is deceptive or misleading. However, this subsection does not apply to surety contracts or fidelity bonds, except as required in Section 38-15-10, or to insurance contracts, riders, or endorsements prepared to meet special, unusual, peculiar, or extraordinary conditions applying to an individual risk.
(B) At any time after having given written approval, and after an opportunity for a hearing for which at least thirty days' written notice has been given, the director or his designee may withdraw approval if he finds that the forms (1) do not meet the requirements of law, (2) contain any provisions which are unfair, deceptive, ambiguous, misleading, or unfairly discriminatory, or (3) are being solicited by means of advertising, communication, or dissemination of information which is deceptive or misleading.
(C) The director or his designee may exempt from the requirements of subsection (A) as long as he considers proper any type of insurance policy, contract, or certificate to which in his opinion subsection (A) practically must not be applied, or the filing and approval of which, in his opinion, is not necessary for the protection of the public. However, every insurer at least annually shall list the types and form numbers of all policies it issues or sells in this State which the director or his designee has exempted from being filed and approved, and the president or chief executive officer of the insurer shall certify that all of these policies comply fully with the laws of this State. If a policy, contract, or certificate is certified to be in compliance with the laws of this State and the director or his designee finds it violates a law of this State, he may disqualify that insurer from certifying policies, contracts, or certificates allowed under this subsection.
Section 38-61-30. The department shall promulgate regulations which establish minimum standards for the readability of each homeowners, dwelling fire, automobile, accident and health, life, and all other forms of personal insurance, excluding commercial, fleet vehicle, and group insurance, which must be complied with by all insurers authorized to do business in this State. The standards shall include, but are not limited to, standards on an index of policy provisions, general organization of text, text readability, type size, type style, type spacing, and general appearance of the insurance contract.
Section 38-61-40. All insurers licensed to transact insurance business in this State shall comply with the standards prescribed by regulation of the department. The director or his designee is empowered to recall all existing policies of commonly purchased insurance that do not comply with Section 38-61-30.
Section 38-61-50. The director or his designee shall consult with and call upon the expertise of other state agencies, as may be necessary, to determine the standards to be promulgated and, after promulgation, the effectiveness of these standards. This consultation shall include, but is not limited to, the State Department of Education or its successor entity."
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SECTION 725. Section 38-63-220(n) of the 1976 Code is amended to read:
"(n) a provision that is in accordance with Article 5 of Chapter 63 of Title 38, Standard Nonforfeiture Law for Life Insurance. The director or his designee may approve policies with provisions which vary from the provisions required in this section if the provisions are more favorable to the insured or if the provisions are not applicable because of the nature of the product."
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SECTION 726. Section 38-63-250(a) of the 1976 Code is amended to read:
"(a) In the alternative life insurers may issue policies that permit an adjustable maximum interest rate established from time to time by the life insurer as permitted by law. These adjustable maximum interest rates may not exceed the higher of the following:
(1) The Published Monthly Average for the calendar month ending two months before the date on which the rate is determined; or
(2) The rate used to compute the cash surrender values under the policy during the applicable period plus one percent per annum. `Published Monthly Average' means Moody's Corporate Bond Yield Average - Monthly Average Corporates as published by Moody's Investors Service, Inc., or any successor thereto or, if Moody's Corporate Bond Yield Average - Monthly Average Corporates is no longer published, a substantially similar average, established by regulation issued by the department."
Name changed
SECTION 727. Section 38-63-520 of the 1976 Code is amended to read:
"Section 38-63-520. No policy of life insurance, except as stated in Section 38-63-640, may be delivered or issued for delivery in this State unless it contains in substance the following provisions or corresponding provisions which, in the opinion of the director or his designee, are at least as favorable to the defaulting or surrendering policyholder as are the minimum requirements hereinafter specified and are essentially in compliance with Section 38-63-630:
(1) In the event of default in any premium payment, the insurer shall grant, upon proper request not later than sixty days after the due date of the premium in default, a paid-up nonforfeiture benefit on a plan stipulated in the policy, effective as of such due date, of such amount as may be hereinafter specified. In lieu of the stipulated paid-up nonforfeiture benefit, the insurer may substitute, upon proper request not later than sixty days after the due date of the premium in default, an actuarially equivalent alternative paid-up nonforfeiture benefit which provides a greater amount or longer period of death benefits or, if applicable, a greater amount or earlier payment of endowment benefits.
(2) Upon surrender of the policy within sixty days after the due date of any premium payment in default after premiums have been paid for at least three full years in the case of ordinary insurance or five full years in the case of industrial insurance, the insurer shall pay, in lieu of any paid-up nonforfeiture benefit, a cash surrender value of such amount as may be specified in this article.
(3) A specified paid-up nonforfeiture benefit becomes effective as specified in the policy unless the person entitled to make the election elects another available option not later than sixty days after the due date of the premium in default.
(4) If the policy has become paid up by completion of all premium payments or if it is continued under any paid-up nonforfeiture benefit which became effective on or after the third policy anniversary in the case of ordinary insurance or the fifth policy anniversary in the case of industrial insurance, the insurer shall pay, upon surrender of the policy within thirty days after any policy anniversary, a cash surrender value of such amount as may be specified in this article.
(5) In the case of policies which cause on a basis guaranteed in the policy unscheduled changes in benefits or premiums, or which provide an option for changes in benefits or premiums other than a change to a new policy, a statement of the mortality table, interest rate, and method used in calculating cash surrender values and the paid-up nonforfeiture benefits available under the policy. In the case of all other policies, a statement of the mortality table and interest rate used in calculating the cash surrender values and the paid-up nonforfeiture benefits available under the policy, together with a table showing the cash surrender value, if any, and paid-up nonforfeiture benefits, if any, available under the policy on each policy anniversary either during the first twenty policy years or during the term of the policy, whichever is shorter, such values and benefits to be calculated upon the assumption that there are no dividends or paid-up additions credited to the policy and that there is no indebtedness to the insurer on the policy.
(6) A statement that the cash surrender values and the paid-up nonforfeiture benefits available under the policy are not less than the minimum values and benefits required by or pursuant to the insurance law of the state in which the policy is delivered; an explanation of the manner in which the cash surrender values and the paid-up nonforfeiture benefits are altered by the existence of any paid-up additions credited to the policy or any indebtedness to the insurer on the policy; if a detailed statement of the method of computation of the values and benefits shown in the policy is not stated therein, a statement that the method of computation has been filed with the insurance supervisory official of the state in which the policy is delivered.
Any of the foregoing provisions or portions thereof not applicable by reason of the plan of insurance may, to the extent inapplicable, be omitted from the policy. The insurer shall reserve the right to defer the payment of any cash surrender value for a period of six months after demand therefor with surrender of the policy."
Name changed
SECTION 728. Section 38-63-580 of the 1976 Code is amended to read:
"Section 38-63-580. This section does not apply to industrial policies issued on or after the operative date of Section 38-63-600 as defined therein. All adjusted premiums and present values referred to in this article must, for policies of industrial insurance issued prior to January 1, 1968, be calculated on the basis of either the 1941 Standard Industrial Mortality Table or the Commissioners' 1961 Standard Industrial Mortality Table as may be elected by the insurer and approved by the director or his designee. However, adjusted premiums and present values for all policies of industrial insurance issued on or after January 1, 1968, must be calculated on the basis of the latter table. All calculations must be made on the basis of the rate of interest specified in the policy for calculating cash surrender values and paid-up nonforfeiture benefits so long as the rate of interest does not exceed three and one-half percent per annum, except that a rate of interest not exceeding four percent per annum may be used for policies issued on or after January 3, 1976, and prior to January 1, 1979, and a rate of interest not exceeding five and one-half percent per annum may be used for policies issued on or after January 1, 1979, except that for any single premium whole life or endowment insurance policy a rate of interest not exceeding six and one-half percent per annum may be used. However, in calculating the present value of any paid-up term insurance with the accompanying pure endowment, if any, offered as a nonforfeiture benefit, the rates of mortality assumed may be not more than one hundred thirty percent of the rates of mortality according to the 1941 Standard Industrial Mortality Table, if this table is used for calculating adjusted premiums and present values, or more than those shown in the Commissioners' 1961 Industrial Extended Term Insurance Table, if the Commissioners' 1961 Standard Industrial Mortality Table is used for calculating adjusted premiums and present values. For insurance issued on a substandard basis, the calculation of adjusted premiums and present values may be based on any other table of mortality as may be specified by the insurer and approved by the director or his designee."
Name changed
SECTION 729. Section 38-63-590 of the 1976 Code is amended to read:
"Section 38-63-590. This section does not apply to ordinary policies issued on or after the operative date of Section 38-63-600 as defined therein. In case of ordinary policies, all adjusted premiums and present values referred to in this article must be calculated on the basis of the Commissioners' 1958 Standard Ordinary Mortality Table and the rate of interest specified in the policy for calculating cash surrender values and paid-up nonforfeiture benefits so long as the rate of interest does not exceed three and one-half percent per annum, except that a rate of interest not exceeding four percent per annum may be used for policies issued on or after January 3, 1976, and prior to January 1, 1979, and a rate of interest not exceeding five and one-half percent per annum may be used for policies issued on or after January 1, 1979, except that for any single premium whole life or endowment insurance policy a rate of interest not exceeding six and one-half percent per annum may be used, and, for any category of ordinary insurance issued on female risks, adjusted premiums and present values may be calculated according to an age not more than six years younger than the actual age of the insured. In calculating the present value of any paid-up term insurance with accompanying pure endowment, if any, offered as a nonforfeiture benefit, the rates of mortality assumed may be not more than those shown in the Commissioners' 1958 Extended Term Insurance Table, and, for insurance issued on a substandard basis, the calculation of the adjusted premiums and present values may be based on any other table of mortality as may be specified by the insurer and approved by the director or his designee."
Name changed
SECTION 730. Section 38-63-600(8) of the 1976 Code is amended to read:
"(8) All adjusted premiums and present values referred to in this article:
(A) must for all policies of ordinary insurance be calculated on the basis of (i) the Commissioners' 1980 Standard Ordinary Mortality Table or (ii) at the election of the insurer for any one or more specified plans of life insurance, the Commissioners' 1980 Standard Ordinary Mortality Table with Ten-Year Select Mortality Factors;
(B) must for all policies of industrial insurance be calculated on the basis of the Commissioners' 1961 Standard Industrial Mortality Table; and
(C) must for all policies issued in a particular calendar year be calculated on the basis of a rate of interest not exceeding the nonforfeiture interest rate as defined in this section for policies issued in that calendar year. However:
(a) At the option of the insurer, calculations for all policies issued in a particular calendar year may be made on the basis of a rate of interest not exceeding the nonforfeiture interest rate, as defined in this section, for policies issued in the immediately preceding calendar year.
(b) Under any paid-up nonforfeiture benefit, including any paid-up dividend additions, any cash surrender value available, whether or not required by Section 38-63-520, must be calculated on the basis of the mortality table and rate of interest used in determining the amount of the paid-up nonforfeiture benefit and paid-up dividend additions, if any.
(c) An insurer may calculate the amount of any guaranteed paid-up nonforfeiture benefit including any paid-up additions under the policy on the basis of an interest rate no lower than that specified in the policy for calculating cash surrender values.
(d) In calculating the present value of any paid-up term insurance with accompanying pure endowment, if any, offered as a nonforfeiture benefit, the rates of mortality assumed may be not more than those shown in the Commissioners' 1980 Extended Term Insurance Table for policies of ordinary insurance and not more than the Commissioners' 1961 Industrial Extended Term Insurance Table for policies of industrial insurance.
(e) For insurance issued on a substandard basis, the calculation of any such adjusted premiums and present values may be based on appropriate modifications of the aforementioned tables.
(f) Any ordinary mortality tables, adopted after 1980 by the National Association of Insurance Commissioners, that are approved by regulation promulgated by the department for use in determining the minimum nonforfeiture standard may be substituted for the Commissioners' 1980 Standard Ordinary Mortality Table with or without Ten-Year Select Mortality Factors or for the Commissioners' 1980 Extended Term Insurance Table.
(g) Any industrial mortality tables, adopted after 1980 by the National Association of Insurance Commissioners, that are approved by regulation promulgated by the department for use in determining the minimum nonforfeiture standard may be substituted for the Commissioners' 1961 Standard Industrial Mortality Table or the Commissioners' 1961 Industrial Extended Term Insurance Table."
Name changed
SECTION 731. Section 38-63-600(11) of the 1976 Code is amended to read:
"(11) After the effective date of this section, any insurer may file with the department a written notice of its election to comply with the provisions of this section after a specified date before January 1, 1989, which shall be the operative date of this section for that insurer. If an insurer does not make that election, the operative date of this section for that insurer is January 1, 1989.
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SECTION 732. Section 38-63-610 of the 1976 Code is amended to read:
"Section 38-63-610. In the case of any plan of life insurance which provides for future premium determination, the amounts of which are to be determined by the insurer based on then estimates of future experience or, in the case of any plan of life insurance which is of such a nature that minimum values cannot be determined by the methods described in Sections 38-63-520 to 38-63-600, then:
(a) The director or his designee must be satisfied that the benefits provided under the plan are substantially as favorable to policyholders and insureds as the minimum benefits otherwise required by Sections 38-63-520 to 38-63-600.
(b) The director or his designee must be satisfied that the benefits and the pattern of premiums of that plan are not misleading to prospective policyholders or insureds.
(c) The cash surrender values and paid-up nonforfeiture benefits provided by the plan may not be less than the minimum values and benefits required for the plan computed by a method consistent with the principles of this article, as determined by regulations promulgated by the department."
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SECTION 733. Section 38-63-650 of the 1976 Code is amended to read:
"Section 38-63-650. An insurer may file with the department a written notice of its election to comply with the provisions of this article after a specified date before January 1, 1966. After the filing of the notice, then upon the specified date, which shall be the operative date for that insurer, this article becomes operative with respect to the policies thereafter issued by the insurer. If an insurer makes no election, the operative date of this article for that insurer is January 1, 1966."
Name changed
SECTION 734. Section 38-65-60 of the 1976 Code is amended to read:
"Section 38-65-60. (1) No life insurance coverage may be extended to residents of this State under a policy of group insurance issued outside this State which does not provide in substance the provisions of Section 38-65-210 unless the director or his designee determines that certain provisions are not appropriate for the coverage provided.
(2) Any insurer extending life insurance under a group policy issued outside this State to residents of this State shall comply with the requirements of this State relating to advertising and to claims settlement practices with respect to the insurance.
(3) Upon request of the director or his designee, copies of policies and certificates under a policy of group life insurance issued outside this State and covering residents of this State must be made available on an informational basis only. However, mass-marketed life insurance policies and certificates shall have prior approval of the director or his designee before they can be offered for sale to residents of this State."
Name changed
SECTION 735. Section 38-65-210 of the 1976 Code is amended to read:
"Section 38-65-210. No policy of group life insurance may be delivered in this State unless it contains in substance the following provisions or provisions which in the opinion of the director or his designee are more favorable to the persons insured or at least as favorable to the persons insured and more favorable to the policyholder. However, (a) items (6) to (11), inclusive, do not apply to policies issued to a creditor, (b) the standard provisions required for individual life insurance policies do not apply to group life insurance policies, and (c) if the group life insurance policy is on a plan of insurance other than the term plan, it shall contain a nonforfeiture provision which in the opinion of the director or his designee is equitable to the insured persons and to the policyholder, but nothing may be construed in this section to require that group life insurance policies contain the same nonforfeiture provisions as are required for individual life insurance policies:
(1) A provision that the policyholder is entitled to a grace period of thirty-one days for the payment of any premium due except the first, during which grace period the death benefit coverage continues in force, unless the policyholder has given the insurer written notice of discontinuance in advance of the date of discontinuance and in accordance with the terms of the policy. The policy may provide that the policyholder is liable to the insurer for the payment of a pro rata premium for the time the policy was in force during the grace period.
(2) A provision that the validity of the policy may not be contested, except for nonpayment of premiums, after it has been in force for two years from its date of issue and that no statement made by any person insured under the policy relating to his insurability may be used in contesting the validity of the insurance with respect to which the statement was made after the insurance has been in force before the contest for a period of two years during the person's lifetime nor unless it is contained in a written instrument signed by him.
(3) A provision that a copy of the application, if any, of the policyholder must be attached to the policy when issued, that all statements made by the policyholder or by the persons insured are considered representations and not warranties and that no statement made by any person insured may be used in any contest unless a copy of the instrument containing the statement is or has been furnished to the person or his beneficiary.
(4) A provision setting forth the conditions, if any, under which the insurer reserves the right to require a person eligible for insurance to furnish evidence of individual insurability satisfactory to the insurer as a condition to part or all of his coverage.
(5) A provision specifying an equitable adjustment of premiums or of benefits, or of both, to be made in the event the age or sex of a person insured has been misstated. The provision shall contain a clear statement of the method of adjustment to be used.
(6) A provision that any sum becoming due by reason of the death of the person insured is payable to the beneficiary designated by the person insured, subject to the provisions of the policy in the event there is no designated beneficiary, as to all or any part of the sum, living at the death of the person insured and subject to any right reserved by the insurer in the policy and set forth in the certificate to pay at its option a part of the sum not exceeding two thousand dollars to any person appearing to the insurer to be entitled equitably thereto by reason of having incurred funeral or other expenses incident to the last illness or death of the person insured.
(7) A provision that the insurer will issue to the policyholder for delivery to each person insured an individual certificate setting forth a statement as to the insurance protection to which he is entitled, to whom the insurance benefits are payable and the rights and conditions set forth in items (8), (9), and (10) of this section.
(8) A provision that if the insurance or any portion of it on a person covered under the policy ceases because of termination of employment or of membership in the class or classes eligible for coverage under the policy that person is entitled to have issued to him by the insurer, without evidence of insurability, an individual policy of life insurance without disability or other supplementary benefits so long as application for the individual policy is made and the first premium paid to the insurer within thirty-one days after the termination and so long as the following conditions are met:
(a) The individual policy is, at the option of the individual, on any one of the forms, except term insurance, then customarily issued by the insurer at the age and for the amount applied for.
(b) The individual policy is in an amount not in excess of the amount of life insurance which ceases because of the termination, less, in the case of a person whose membership in the class or classes eligible for coverage terminates but who continues in employment in another class, the amount of any life insurance for which the person is or becomes eligible under any other group policy within thirty-one days after the termination. Any amount of insurance which has matured on or before the date of the termination as an endowment payable to the person insured, whether in one sum or in installments or in the form of an annuity, is not, for the purposes of this provision, included in the amount which is considered to cease because of the termination.
(c) The premium on the individual policy is at the insurer's then customary rate applicable to the form and amount of the individual policy, to the class of risk to which the person then belongs, and to his age attained on the effective date of the individual policy.
(9) A provision that if the group policy terminates or is amended so as to terminate the insurance of any class of insured persons, every person insured thereunder at the date of the termination whose insurance terminates and who has been so insured for at least five years before the termination date is entitled to have issued to him by the insurer an individual policy of life insurance, subject to the same conditions and limitations as are provided by item (8) of this section, except that the group policy may provide that the amount of the individual policy may not exceed the smaller of (a) the amount of the person's life insurance protection ceasing because of the termination or amendment of the group policy, less the amount of any life insurance for which he is or becomes eligible under any group policy issued or reinstated by the same or another insurer within thirty-one days after the termination and (b) ten thousand dollars.
(10) A provision that if a person insured under the group policy dies during the period within which he would have been entitled to have an individual policy issued to him in accordance with item (8) or (9) of this section and before the individual policy has become effective the amount of life insurance which he would have been entitled to have issued to him under the individual policy is payable as a claim under the group policy, whether or not application for the individual policy or the payment of the first premium therefor has been made.
(11) Where active employment is a condition of insurance, a provision that an insured may continue coverage during the insured's total disability by timely payment to the policyholder of that portion, if any, of the premium that would have been required from the insured had total disability not occurred. Unless otherwise provided by law, the continuation must be on a premium-paying basis for a period of six months from the date on which the total disability started, but not beyond the earlier of (a) approval by the insurer of continuation of the coverage under any disability provision which the group insurance policy may contain or (b) the discontinuance of the group insurance policy.
(12) In the case of a policy issued to a creditor, a provision that the insurer will furnish to the policyholder for delivery to each debtor insured under the policy a certificate of insurance describing the coverage and specifying that the death benefit first must be applied to reduce or extinguish the indebtedness."
Name changed
SECTION 736. Section 38-67-10(c) of the 1976 Code is amended to read:
"(c) Except with the approval of the director or his designee and under the conditions as to investments and other matters as he may prescribe, which shall recognize the guaranteed nature of the benefits provided, reserves for (i) benefits guaranteed as to dollar amount and duration and (ii) funds guaranteed as to principal amount or stated rate of interest may not be maintained in a separate account."
Name changed
SECTION 737. Section 38-67-10(d) of the 1976 Code is amended to read:
"(d) Unless otherwise approved by the director or his designee, assets allocated to a separate account must be valued at their market value on the date of valuation or, if there is no readily available market, then as provided under the terms of the contract or the rules or other written agreement applicable to the separate account. However, unless otherwise approved by the director or his designee, the portion of any of the assets of the separate account equal to the insurer's reserve liability with regard to the guaranteed benefits and funds referred to in item (c) of this section must be valued in accordance with the rules otherwise applicable to the insurer's assets."
Name changed
SECTION 738. Section 38-67-10(f) of the 1976 Code is amended to read:
"(f) No sale, exchange, or other transfer of assets may be made by an insurer between any of its separate accounts or between any other investment account and one or more of its separate accounts unless, in case of a transfer into a separate account, the transfer is made solely to establish the account or to support the operation of the contracts with respect to the separate account to which the transfer is made and unless the transfer, whether into or from a separate account, is made (i) by a transfer of cash, or (ii) by a transfer of securities having a readily determinable market value and the transfer of securities is approved by the director or his designee. The director or his designee may approve other transfers among such accounts if, in his opinion, the transfers would not be inequitable."
Name changed
SECTION 739. Section 38-67-30 of the 1976 Code is amended to read:
"Section 38-67-30. No company may deliver or issue for delivery within this State variable contracts unless it is licensed and organized to do a life insurance or annuity business in this State, and the director or his designee is satisfied that its condition or method of operation in connection with the issuance of variable contracts will not render its operation hazardous to the public or its policyholders in this State. In this connection, the director or his designee shall consider among other things:
(a) The history and financial condition of the insurer;
(b) The character, responsibility, and fitness of the officers and directors of the insurer; and
(c) The law and regulation under which the insurer is authorized in the state of domicile to issue variable contracts. The state of entry of an alien insurer is considered its place of domicile for this purpose.
If the insurer is a subsidiary of an admitted life insurer, or affiliated with an admitted life insurer through common management or ownership, it may be considered by the director or his designee to have met the provisions of this section if either it or the parent or the affiliated insurer meets the requirements hereof."
Name changed; department's authority to issue regulations
SECTION 740. Section 38-67-40 of the 1976 Code is amended to read:
"Section 38-67-40. Notwithstanding any other provision of law, the director or his designee has sole authority to regulate the issuance and sale of variable contracts, and the department has the sole authority to issue any regulations as may be appropriate to carry out the purposes and provisions of this chapter."
Name changed
SECTION 741. Section 38-69-120(11) of the 1976 Code is amended to read:
"(11) a provision that is in accordance with Article 5, Chapter 69, Title 38, Standard Nonforfeiture Law for Individual Deferred Annuities. The director or his designee may approve contracts with provisions which vary from the provisions required in this section if the provisions are more favorable to the insured. Any of the provisions not applicable to single premium annuities, flexible premium annuities, or single premium pure endowment contracts need not be incorporated to that extent in the contract. This section does not apply to contracts for annuities included in or upon the lives of beneficiaries under life insurance contracts."
Name changed
SECTION 742. Section 38-69-230 of the 1976 Code is amended to read:
"Section 38-69-230. In the case of contracts issued on or after the operative date of this article as defined in Section 38-69-320, no contract of annuity, except as stated in Section 38-69-220, may be delivered or issued for delivery in this State unless it contains in substance the following provisions, or corresponding provisions which in the opinion of the director or his designee are at least as favorable to the contractholder, upon cessation of payment of considerations under the contract:
(a) That upon cessation of payment of considerations under a contract, the insurer shall grant a paid-up annuity benefit on a plan stipulated in the contract of such value as is specified in Sections 38-69-250, 38-69-260, 38-69-270, 38-69-280, and 38-69-300.
(b) If a contract provides for a lump sum settlement at maturity, or at any other time, that, upon surrender of the contract at or prior to the commencement of any annuity payments, the insurer will pay in lieu of any paid-up annuity benefit a cash surrender benefit of the amount as is specified in Sections 38-69-250, 38-69-260, 38-69-270, 38-69-280, and 38-69-300. The insurer shall reserve the right to defer the payment of the cash surrender benefit for a period of six months after demand therefor with surrender of the contract.
(c) A statement of the mortality table, if any, and interest rates used in calculating any minimum paid-up annuity, cash surrender, or death benefits that are guaranteed under the contract, together with sufficient information to determine the amounts of these benefits.
(d) A statement that any paid-up annuity, cash surrender, or death benefits that may be available under the contract are not less than the minimum benefits required by any statute of the state in which the contract is delivered and an explanation of the manner in which the benefits are altered by the existence of any additional amounts credited by the insurer to the contract, any indebtedness to the insurer on the contract, or any prior withdrawals from or partial surrenders of the contract.
Notwithstanding the requirements of this section, any deferred annuity contract may provide that, if no considerations have been received under a contract for a period of two full years and the portion of the paid-up annuity benefit at maturity on the plan stipulated in the contract arising from considerations paid prior to that period would be less than twenty dollars monthly, the insurer may at its option terminate the contract by payment in cash of the then present value of that portion of the paid-up annuity benefit, calculated on the basis of the mortality table, if any, and interest rate specified in the contract for determining the paid-up annuity benefit. This payment relieves the insurer of any further obligation under the contract."
Name changed
SECTION 743. Section 38-69-320 of the 1976 Code is amended to read:
"Section 38-69-320. After May 31, 1978, an insurer may file with the department a written notice of its election to comply with the provisions of this article after a specified date before May 31, 1980. After the filing of the notice, upon the specified date, which is the operative date of this article for the insurer, this article becomes operative with respect to annuity contracts thereafter issued by the insurer. If an insurer makes no election, the operative date of this article for the insurer is May 31, 1980."
Name changed, defined; appointment of designee or deputy director, etc.
SECTION 744. Section 38-70-10(4) of the 1976 Code is amended to read:
"(4) `Director or his designee' means the director or his designee of the South Carolina Department of Insurance. The director may appoint a designee or deputy director to assist in the management and operation of the department. If the director does not appoint a designee or deputy director, the term `director or his designee' shall be construed to refer to the director of the department."
Name changed
SECTION 745. Section 38-70-10(5) of the 1976 Code is amended to read:
"(5) `Certificate' means a renewable certificate of registration granted by the director or his designee to a private review agent, authorizing the agent to perform utilization review activities in this State for two years. This certificate is not transferable."
Name changed; provisions deleted
SECTION 746. Section 38-70-20 of the 1976 Code is amended to read:
"Section 38-70-20. (A) No private review agent may conduct utilization reviews in this State unless the director or his designee has granted the private review agent a certificate to perform these activities. The director or his designee, in his discretion, may approve or deny certificate applications.
(B) An applicant for a certificate shall pay the director or his designee the application fee as provided in Section 38-70-50 and shall submit an application to the director or his designee on forms and with any supporting documentation that the director or his designee requires. The application must contain information regarding the utilization review programs to be conducted by the applicant which must meet the requirements contained in subsection (C) below.
(C) A utilization review program of the applicant must meet the following minimum standards:
(1) Notification of an adverse decision by the utilization review agent must be provided to the insured or other party designated by the insured within five business days.
(2) All utilization review agents shall maintain a procedure by which insured or providers may seek reconsideration of appeal of determinations of the utilization review agent.
(3) A representative of the utilization review agent must be accessible by telephone to insureds or providers in South Carolina, at least forty hours each week during normal business hours.
(4) The type and qualification of the personnel either employed or under contract to perform the utilization reviews must be included in the utilization review program information submitted to the director or his designee.
(5) A copy of the materials designed to inform applicable patients of the requirements of the utilization plan and the responsibilities and rights of patients under the plan must be provided interested parties upon request; and
(6) An acknowledgment that all applicable state and federal laws to protect the confidentiality of individual medical records are followed."
Name changed
SECTION 747. Section 38-70-30 of the 1976 Code is amended to read:
"Section 38-70-30. A certificate must be renewed on the second anniversary of its effective date and is considered to be approved upon payment of the fee unless the director or his designee takes action to withdraw or cancel the certificate."
Name changed; appeals to Administrative Law Judge Division
SECTION 748. Section 38-70-40 of the 1976 Code is amended to read:
"Section 38-70-40. (A) The director or his designee may conduct periodic reviews of the operations of private review agents in this State to ensure that they continue to meet the specifications outlined in this chapter and any applicable regulations which may be promulgated by the department. The director or his designee may perform periodic telephone audits of private review agents authorized to conduct business in this State, to determine if the agents are reasonably accessible.
(B) Within ninety days upon receipt of a complaint from a licensed health care provider, the director or his designee may investigate the complaint, including holding hearings and taking testimony or other appropriate actions, and shall present a written response to the complainant and the private review agent named. This response must include the following:
(1) a statement of the original complaint;
(2) a determination of findings of the director or his designee;
(3) corrective actions, if any, on the part of the private review agent which the director or his designee finds appropriate; and
(4) a time frame in which any corrective actions are to be completed.
(C) The director or his designee is authorized to take appropriate action against a private review agent who fails to meet the standards of this chapter or of any applicable regulations promulgated by the department, or who fails to respond in a timely fashion to corrective actions ordered by the director or his designee. The director or his designee may impose an administrative fine not to exceed one thousand dollars for each violation or may deny, suspend, or revoke the certificate of the private review agent.
(D) The director or his designee may also deny, suspend, or revoke a certificate if, upon review, the director or his designee finds that the private review agent does not:
(1) have a utilization review program that meets the requirements of subsection (C) of Section 38-70-20;
(2) have available the services of sufficient numbers of registered nurses, medical records technicians, or similarly qualified persons supported and supervised by appropriate physicians to carry out its utilization review activities;
(3) meet any applicable regulations the department promulgates under this chapter relating to the qualifications of private review agents or the performance of utilization review;
(4) remain accessible to patients and providers.
(E) Before taking the actions authorized by this section to deny, suspend, or revoke the certificate of a private review agent, the director or his designee shall provide the private review agent with reasonable time to supply additional information demonstrating compliance with the requirements of this chapter and the opportunity to request a hearing. If a private review agent requests a hearing, the director or his designee shall send a hearing notice to the involved parties by certified mail, return receipt requested, at least thirty days before the hearing. The director or his designee shall hold the hearing in accordance with the provisions of Chapter 3 of this title, and the State Administrative Procedures Act. Any action or decision of the director or his designee pursuant to the administrative hearing may be appealed to the Administrative Law Judge Division as provided by law by the private review agent."
Name changed
SECTION 749. Section 38-70-50 of the 1976 Code is amended to read:
"Section 38-70-50. (A) Every private review agent, before transacting business in this State, shall pay an application fee of not more than four hundred dollars and a registration fee of not more than eight hundred dollars to the department by July first each even-numbered year. The certificate year runs July first to the following June thirtieth.
(B) The department shall promulgate regulations necessary to establish these registration and application fees."
Name changed
SECTION 750. Section 38-70-60 of the 1976 Code is amended to read:
"Section 38-70-60. The department, after consultation with payers, providers, utilization review agents, the Department of Health and Environmental Control and other interested parties, shall promulgate regulations to implement and enforce the requirements of this chapter in accordance with the State Administrative Procedures Act."
Name changed
SECTION 751. Section 38-71-70 of the 1976 Code is amended to read:
"Section 38-71-70. Any foreign insurer authorized to do business in this State may, with the approval of the director or his designee, insert in any policy covered by this chapter so issued or delivered any provision required by the laws of any state or country in which the insurer is licensed, if the provision is not substantially in conflict with any law of this State. A domestic insurer may insert in any policy covered by this chapter issued for delivery in another state or foreign country and governed by the laws thereof any provision required by the laws of the other state or country applicable to the policy."
Name changed; appeals to Administrative Law Judge Division
SECTION 752. Section 38-71-190 of the 1976 Code is amended to read:
"Section 38-71-190. Any policy or contract of accident and health insurance issued in this State may include provision for subrogation by the insurer to the insured's right of recovery against a liable third party for not more than the amount of insurance benefits that the insurer has paid previously in relation to the insured's injury by the liable third party. If the director or his designee, upon being petitioned by the insured, determines that the exercise of subrogation by an insurer is inequitable and commits an injustice to the insured, subrogation is not allowed. Attorneys' fees and costs must be paid by the insurer from the amounts recovered. This determination by the director or his designee may be appealed to the Administrative Law Judge Division as provided by law in accordance with Section 38-3-210."
Name changed; appeals to Administrative Law Judge Division; etc.
SECTION 753. Section 38-71-310 of the 1976 Code is amended to read:
"Section 38-71-310. (A) No policy or certificate of accident, health, or accident and health insurance may be issued or delivered in this State, nor may any application, endorsement, or rider which becomes a part of the policy be used, until a copy of its form has been filed with and approved by the director or his designee except as exempted by regulation of the department as permitted by Section 38-61-20. The director or his designee may disapprove the form if the form (1) does not meet the requirements of law, (2) contains any provisions which are unfair, deceptive, ambiguous, misleading, or unfairly discriminatory, or (3) is going to be solicited by means of advertising, communication, or dissemination of information which is deceptive or misleading. The director or his designee shall notify in writing, as soon as is practicable, the insurer which has filed the form of his approval or disapproval. In the event of disapproval, the notice must contain the reasons for disapproval, and the insurer is entitled to a public hearing thereon. If no action has been taken to approve or disapprove a policy or certificate, application, endorsement, or rider after the documents have been filed for ninety days, they are deemed to be approved.
(B) No premium rates applicable to accident policies, health policies, or combined accident and health policies or certificates for individual or family protection may be used unless they have been filed with the department and approved by the director or his designee. The director or his designee may disapprove premium rates if he determines that the benefits provided in the policies or certificates are unreasonable in relation to the premiums charged. The director or his designee shall notify in writing the insurer, as soon as is practicable, which has filed the premium rates of his approval or disapproval with the department. In the event of disapproval, the notice must contain the reasons for disapproval, and the insurer is entitled to appeal the decision or determination of disapproval before the Administrative Law Judge Division as provided by law. If no action has been taken to approve or disapprove the premium rates after they have been filed for ninety days, they are deemed to be approved.
(C) At any time the director or his designee, after a public hearing of which at least thirty days' written notice has been given, may withdraw approval of forms or rates previously approved under subsections (A) and (B) if he determines that the forms or rates no longer meet the standards for approval specified in subsections (A) and (B).
(D) The provisions of this section do not apply to policies issued in connection with loans made under the Small Loan Act of 1966.
(E) For major medical expense coverage individual accident and health insurance policies, as defined by regulation of the department, the benefits are deemed reasonable in relation to the premium charged if the insurer has filed a loss ratio guarantee with the department. This guaranteed loss ratio must be equivalent to, or greater than, the most recent loss ratios detailed within the National Association of Insurance Commissioners' `Guidelines for Filing of Rates for Individual Health Insurance Forms.' This loss ratio guarantee must be in writing and must contain at least the following:
(1) A recitation of the anticipated (target) loss ratio standards contained in the original actuarial memorandum filed with the policy form when it was originally approved.
(2) A guarantee that the actual South Carolina loss ratios for the calendar year in which the new rates take effect, and for each year thereafter until new rates are filed will meet or exceed the loss ratio standards referred to in item (1) above.
(3) A guarantee that the actual South Carolina loss ratio results for the year at issue will be independently audited at the insurer's expense. This audit must be done in the second quarter of the next year and the audited results must be reported to the department not later than the date for filing the applicable Accident and Health Policy Experience Exhibit.
(4) A guarantee that affected South Carolina policyholders will be issued a proportional refund (based on premium paid) of the amount necessary to bring the actual aggregate loss ratio up to the anticipated loss ratio standards referred to in item (1) above. The refund must be made to all South Carolina policyholders insured under the applicable policy form as of the last day of the year at issue if the refund would equal five dollars or more. The refund must include statutory interest from the end of the year at issue until the date of payment. Payments must be made during the third quarter of the next year.
(5) As used herein, the term `loss ratio' means the ratio of incurred losses to earned premium by number of years of policy duration, for all combined durations.
(6) The reference in item (1) of this subsection to the `anticipated (target) loss ratio standards contained in the original actuarial memorandum filed with the policy form when it was originally approved' may not be considered or construed as evidence of legislative intent that the use of, or adherence to, such `anticipated (target) loss ratio standards' is approved or disapproved in any application for a rate increase for any policy form approved prior to the effective date of these amendments to Section 38-71-310."
Name changed
SECTION 754. Section 38-71-315 of the 1976 Code is amended to read:
"Section 38-71-315. Any insurer of individual accident and health insurance may at any time, except when required by law or order of the director or his designee, voluntarily decrease its premium charge for any approved policy form without the prior approval of the director or his designee. However, the insurer must notify the director or his designee and the consumer advocate for information thirty days prior to the use of the revised premium charge. Notwithstanding any other provision of law, any time within one year after using such revised premium charge, the insurer may return its premium charge back to the previously approved level by informing the director or his designee and the consumer advocate of the revision thirty days prior to the effective date. The director or his designee may not disapprove such revision."
Name changed
SECTION 755. Section 38-71-320 of the 1976 Code is amended to read:
"Section 38-71-320. If a policy is issued by an insurer domiciled in this State for delivery to a person residing in another state and if the official having responsibility for the administration of the insurance laws of the other state has advised the director or his designee that the policy is not subject to approval or disapproval by the official, the director or his designee may by ruling require that the policy meet the standards set forth in Sections 38-71-330, 38-71-340, and 38-71-370."
Name changed
SECTION 756. Section 38-71-325 of the 1976 Code is amended to read:
"Section 38-71-325. On January 1, 1992, in addition to any other requirements of law, no new individual major medical expense coverage policy, as defined in regulations promulgated by the department, may be approved unless:
(1) Premium rates, after appropriate allowance for the actuarial value of the difference in benefits, for any such policy form first approved for use by the insurer in South Carolina within the two-year period immediately prior to the effective date of this section and any such policy form first approved for use after the effective date of this section do not exceed the premium rates for any other such policy form first approved for use during this period by more than thirty percent.
(2) The actuarial value of the difference in benefits set out in such policy forms of the insurer, as specified in an opinion by a qualified actuary or other qualified person acceptable to the director or his designee,is reported not less often than once a year to the director or his designee and used in demonstrating compliance with item (1) above.
(3) The anticipated (target) loss ratio for the combined experience for all the policy forms specified in item (1) must be equivalent to or greater than the most recent loss ratios detailed within the National Association of Insurance Commissioner's `Guidelines for Filing of Rates for Individual Health Insurance Forms' or successor publications. The anticipated (target) loss ratio for the combined experience is defined as the average anticipated (target) loss ratio for all these policy forms included in the combined experience weighted by premium volume. With respect to the policy form, the insurer shall have the right to file a loss ratio guarantee in accordance with the procedures specified in Section 38-71-310(E) or to request approval of any rate change before the use thereof, but the anticipated loss ratios of each policy form whether or not a loss ratio guarantee has been filed must be combined as provided in the preceding item (3).
The initial policy form proposed to be used by a domestic insurer after its organization under the laws of this State and the initial policy form proposed to be used by a foreign insurer after authorization by the director or his designee to do business in this State may be disapproved by the director or his designee if he determines that the rates proposed to be used with the policy form are set at a level substantially less than rates charged by other insurers in this State offering comparable coverage.
Nothing contained in this section may be construed to prevent the use of age, sex, area, industry, occupational, and avocational factors or to prevent the use of different rates for smokers and nonsmokers or for any other habit or habits of an insured person which have a statistically proven effect on the health of the person and are approved by the director or his designee. Also, nothing contained in this section shall preclude the establishment of a substandard classification based upon the health condition of the insured, but the initial classification may not be changed adversely to the applicant after initial issue.
The director or his designee has the right, upon application by any insurer, to grant relief, for good cause shown, from any requirement of this section."
Name changed
SECTION 757. Section 38-71-330(7) of the 1976 Code is amended to read:
"(7) It contains no provision purporting to make any portion of the charter, rules, constitution, or bylaws of the insurer a part of the policy unless that portion is set forth in full in the policy, except in the case of the incorporation of, or reference to, a statement of rates or classification of risks or short-rate table filed with the department."
Name changed
SECTION 758. Section 38-71-335(B) of the 1976 Code is amended to read:
"(B) Individual or family accident, health, or accident and health insurance policies may not be written on an optionally renewable basis. `Optionally renewable' means a contract of insurance in which the insurer reserves the right to terminate the coverage at the policy anniversary date. Optionally renewable does not include the following categories of policies as defined by the department by regulation: (1) `nonrenewable for stated reasons only' and (2) `conditionally renewable'. Term insurance is not considered insurance written on an optionally renewable basis."
Name changed
SECTION 759. Section 38-71-340 of the 1976 Code is amended to read:
"Section 38-71-340. Except as provided in Section 38-71-410, each accident, health, or accident and health policy delivered or issued for delivery to an individual in this State must contain the provisions specified in this section, in the words in which they appear in this section. The insurer, at its option, may substitute for one or more of these provisions corresponding provisions of different wording approved by the director or his designee which are in each instance not less favorable in any respect to the insured or the beneficiary. These provisions must be preceded individually by the caption appearing in this section or, at the option of the insurer, by appropriate individual or group caption or subcaptions approved by the director or his designee.
(1) A provision as follows:
ENTIRE CONTRACT; CHANGES:
This policy, with the application and attached papers, if any, is the entire contract between the insured and the company. No change in this policy is effective until approved by a company officer. This approval must be noted on or attached to this policy. No agent may change this policy or waive any of its provisions.
(2) A provision as follows:
TIME LIMIT ON CERTAIN DEFENSES:
After two years from the issue date only fraudulent misstatements in the application may be used to void the policy or deny any claim for loss incurred or disability that starts after the two-year period.
A policy which the insured has the right to continue in force subject to its terms by the timely payment of premium (a) until at least age fifty or (b) in the case of a policy issued after age forty-four, for at least five years from its date of issue, may contain in lieu of the foregoing the following provision (from which the clause in parenthesis may be omitted at the insurer's option) `INCONTESTABLE':
(a) Misstatements in the application:
After this policy has been in force for two years during the insured's lifetime (excluding any period during which the insured is disabled), the company cannot contest the statements contained in the application.
(b) Preexisting conditions:
No claim for loss incurred or disability that starts after two years from the issue date will be reduced or denied because a sickness or physical condition not excluded by name or specific description before the date of loss had existed before the effective date of coverage.
(3) A provision as follows:
GRACE PERIOD:
This policy has a ______ day grace period. This means that if a renewal premium is not paid on or before the date it is due, it may be paid during the following ______ days. During the grace period the policy will stay in force. [Note: Insert a number not less than `seven' for weekly premium policies, `ten' for monthly premium policies, and `thirty-one' for all other policies.]
(4) A provision as follows:
REINSTATEMENT:
If the renewal premium is not paid before the grace period ends the policy will lapse. Later acceptance of the premium by the company or by an agent authorized to accept payment without requiring an application for reinstatement will reinstate the policy. If the company or its agent requires an application, the insured will be given a conditional receipt for the premium. If the application is approved, the policy will be reinstated as of the approval date. Lacking such approval, the policy will be reinstated on the forty-fifth day after the date of the conditional receipt unless the company has previously written the insured of its disapproval. The reinstated policy will cover only loss that results from an injury sustained after the date of reinstatement or sickness that starts more than ten days after such date.
In all other respects the rights of the insured and the company will remain the same, subject to any provisions noted on or attached to the reinstated policy. Any premiums the company accepts for reinstatement will be applied to a period for which premiums have not been paid. No premiums will be applied to any period more than sixty days before the reinstatement date.
[The last sentence of the above provision may be omitted from any policy which the insured has the right to continue in force subject to its terms by the timely payment of premiums (a) until at least age fifty or (b) in the case of a policy issued after age forty-four, for at least five years from its date of issue.]
(5) A provision as follows:
NOTICE OF CLAIM:
Written notice of claim must be given within twenty days after a covered loss starts or as soon as reasonably possible. The notice may be given to the company at its home office or to the company's agent. Notice should include the name of the insured and the policy number.
Optional paragraph: If the insured has a disability for which benefits may be payable for at least two years, at least once every six months after the insured has given notice of claim, the insured shall give the company notice that the disability has continued. The insured need not do this if legally incapacitated. The first six months after any filing of proof by the insured or any payment or denial of a claim by the company will not be counted in applying this provision.
If the insured delays in giving this notice, the insured's right to any benefits for the six months before the date when the insured gives notice will not be impaired.
(6) A provision as follows:
CLAIM FORMS:
When the company receives notice of claim, it will send the claimant forms for filing proof of loss. If these forms are not given to the claimant within fifteen days the claimant will meet the proof of loss requirements by giving the company a written statement of the nature and extent of the loss within the time limits stated in the Proofs of Loss section.
(7) A provision as follows:
PROOFS OF LOSS:
If the policy provides for periodic payment for a continuing loss, written proof of loss must be given the company within ninety days after the end of each period for which the company is liable. For any other loss, written proof must be given within ninety days after such loss. If it was not reasonably possible to give written proof in the time required, the company may not reduce or deny the claim for this reason if the proof is filed as soon as reasonably possible. The proof required must be given no later than one year from the time specified unless the claimant was legally incapacitated.
(8) A provision as follows:
TIME OF PAYMENT OF CLAIMS:
After receiving written proof of loss, the Company will pay ______ [insert period for payment which may not be less frequently than monthly] all benefits then due for ______ [insert applicable term for type of benefits].
(9) A provision as follows:
PAYMENT OF CLAIMS:
Benefits will be paid to the insured. Loss of life benefits are payable in accordance with the beneficiary designation in effect at the time of payment. If none is then in effect, the benefits will be paid to the insured's estate. Any other benefits unpaid at death may be paid, at the company's option, either to the insured's beneficiary or estate.
Optional paragraph: If benefits are payable to the insured's estate or a beneficiary who cannot execute a valid release, the company can pay benefits up to one thousand dollars to someone related to the insured or beneficiary by blood or marriage whom the company considers to be entitled to the benefits. The company will be discharged to the extent of any such payment made in good faith.
Optional paragraph: The company may pay all or a portion of any indemnities provided for health care services to the provider, unless the insured directs otherwise in writing by the time proofs of loss are filed. The company cannot require that the services be rendered by a particular provider.
(10) A provision as follows:
PHYSICAL EXAMINATIONS AND AUTOPSY:
The company at its own expense may have the insured examined as often as reasonably necessary while a claim is pending and in cases of death of the insured the insurer at its own expense also may have an autopsy performed during the period of contestability unless prohibited by law. The autopsy must be performed in South Carolina.
(11) A provision as follows:
LEGAL ACTIONS:
No legal action may be brought to recover on this policy within sixty days after written proof of loss has been given as required by this policy. No such action may be brought after six years from the time written proof of loss is required to be given.
(12) A provision as follows:
CHANGE OF BENEFICIARY:
The insured can change the beneficiary at any time by giving the company written notice. The beneficiary's consent is not required for this or any other change in the policy, unless the designation of the beneficiary is irrevocable.
(13) A provision as follows:
CONFORMITY WITH STATE STATUTES:
Any provision of this policy which, on its effective date, is in conflict with the laws of the state in which the insured resides on that date is amended to conform to the minimum requirements of such laws."
Name changed
SECTION 760. Section 38-71-370 of the 1976 Code is amended to read:
"Section 38-71-370. Except as provided in Section 38-71-410, no individual accident, health, or accident and health policy delivered or issued for delivery to any person in this State may contain provisions respecting the matters set forth below unless the provisions are in the words in which they appear in this section. However, the insurer may, at its option, use in lieu of these provisions a corresponding provision of different wording approved by the director or his designee which is not less favorable in any respect to the insured or the beneficiary. Any such provision contained in the policy shall be preceded individually by the appropriate caption appearing in this section, or, at the option of the insurer, by appropriate individual or group captions or subcaptions approved by the director or his designee.
(1) A provision as follows:
CHANGE OF OCCUPATION:
If the insured be injured or contract sickness after having changed his occupation to one classified by the insurer as more hazardous than that stated in this policy or while doing for compensation anything pertaining to an occupation so classified, the insurer will pay only such portion of the indemnities provided in this policy as the premium paid would have purchased at the rates and within the limits fixed by the insurer for such more hazardous occupation. If the insured changes his occupation to one classified by the insurer as less hazardous than that stated in this policy, the insurer, upon receipt of proof of such change of occupation, will reduce the premium rate accordingly and will return the excess pro rata unearned premium from the date of change of occupation or from the policy anniversary date immediately preceding receipt of such proof, whichever is the more recent. In applying this provision, the classification of occupational risk and the premium rates shall be such as have been last filed by the insurer prior to the occurrence of the loss for which the insurer is liable or prior to date of proof of change in occupation with the state official having supervision of insurance in the state where the insured resided at the time this policy was issued; but if such filing was not required, then the classification of occupational risk and the premium rates shall be those last made effective by the insurer in such state prior to the occurrence of the loss or prior to the date of proof of change in occupation.
(2) A provision as follows:
MISSTATEMENT OF AGE:
If the insured's age has been misstated, the benefits will be those the premium paid would have purchased at the correct age.
(3) A provision as follows:
OTHER INSURANCE IN THIS INSURER:
If the insured has more than one policy ______ [insert designation for limitation such as policy form-type-form], only one policy chosen by the insured will be effective. The company shall refund all premiums paid for all the other policies.
Optional paragraph: If the insured has more than one policy with this company providing a total indemnity for _______ [insert type of coverage or coverages] of more than _______ [insert maximum limit of indemnity or indemnities] the excess insurance is void. The premiums paid for the excess must be returned to the insured.
Or, in lieu thereof:
Insurance effective at one time on the insured under a like policy or policies in this insurer is limited to the one such policy elected by the insured, his beneficiary, or his estate, as the case may be, and the insurer will return all premiums paid for all other such policies.
On every application for insurance the insurer shall ask for the amount of insurance which the applicant currently has in force with such insurer. If the insurer fails to ascertain the amount of insurance which an applicant has in force, all policies issued by the insurer to the applicant remain in force and the insurer is liable for all benefits payable thereunder, unless the applicant has misrepresented the amount of existing coverage on the application.
In all cases where the applicant indicates that other life, accident, and health insurance is in force with the insurer or the insurer's company, the insurer shall provide the applicant with the total amount of existing coverage with the insurer or insurer's company within sixty days.
(4) A provision as follows:
INSURANCE WITH OTHER INSURERS:
If there be other valid coverage, not with this insurer, providing benefits for the same loss on a provision-of-service basis or on an expense-incurred basis and of which this insurer has not been given written notice prior to the occurrence or commencement of loss, the only liability under any expense-incurred coverage of this policy shall be for such proportion of the loss as the amount which would otherwise have been payable hereunder plus the total of the like amounts under all such other valid coverages for the same loss of which this insurer had notice bears to the total like amounts under all valid coverages for such loss and for the return of such portion of the premiums paid as shall exceed the pro rata portion for the amount so determined. For the purpose of applying this provision when other coverage is on a provision-of-service basis, the `like amount' of such other coverage shall be taken as the amount which the services rendered would have cost in the absence of such coverage.
[If the foregoing policy provision is included in a policy which also contains the policy provision set out in item (5) of this section, there shall be added to the caption of the foregoing provision the phrase `EXPENSE-INCURRED BENEFITS'. The insurer may, at its option, include in this provision a definition of `other valid coverage', approved as to form by the director or his designee, which definition shall be limited in subject matter to coverage provided by organizations subject to regulation by insurance law or by insurance authorities of this or any other state of the United States or any province of Canada and by hospital or medical service organizations and to any other coverage the inclusion of which may be approved by the director or his designee. In the absence of such definition such term shall not include group insurance, automobile medical payments insurance, or coverage provided by hospital or medical service organizations or by union welfare plans or employer or employee benefit organizations.
For the purpose of applying the foregoing policy provision with respect to any insured, any amount of benefit provided for such insured pursuant to any compulsory benefit statute, including any workers' compensation or employer's liability statute, whether provided by a governmental agency or otherwise shall in all cases be deemed to be `other valid coverage' of which the insurer has had notice. In applying the foregoing policy provision no third-party liability coverage shall be included as `other valid coverage'.]
(5) A provision as follows:
INSURANCE WITH OTHER INSURERS:
If there be other valid coverage, not with this insurer, providing benefits for the same loss on other than an expense-incurred basis and of which this insurer has not been given written notice prior to the occurrence or commencement of loss, the only liability for such benefits under this policy shall be for such proportion of the indemnities otherwise provided hereunder for such loss as the like indemnities of which the insurer had notice (including the indemnities under this policy) bear to the total amount of all like indemnities for such loss and for the return of such portion of the premium paid as shall exceed the pro ratio portion for the indemnities thus determined.
[If the foregoing policy provision is included in a policy which also contains the policy provision set out in item (4) of this section, there shall be added to the caption of the foregoing provision the phrase `OTHER BENEFITS'. The insurer may, at its option, include in this provision a definition of `other valid coverage' approved as to form by the director or his designee, which definition shall be limited in subject matter to coverage provided by organizations subject to regulation by insurance law or by insurance authorities of this or any other state of the United States or any province of Canada, and to any other coverage the inclusion of which may be approved by the director or his designee. In the absence of such definition such term shall not include group insurance or benefits provided by union welfare plans or by employer or employee benefit organizations.
For the purpose of applying the foregoing policy provision with respect to any insured, any amount of benefit provided for such insured pursuant to any compulsory benefit statute, including any workers' compensation or employer's liability statute, whether provided by a governmental agency or otherwise shall in all cases be deemed to be `other valid coverage' of which the insurer has had notice. In applying the foregoing policy provision no third-party liability coverage shall be included as `other valid coverage'.]
(6) A provision as follows:
RELATION OF EARNINGS TO INSURANCE:
If the total monthly amount of loss-of-time benefits promised for the same loss under all valid loss-of-time coverage upon the insured, whether payable on a weekly or monthly basis, shall exceed the monthly earnings of the insured at the time disability commenced or his average monthly earnings for the period of two years immediately preceding a disability for which claim is made, whichever is the greater, the insurer will be liable only for such proportionate amount of such benefits under this policy as the amount of such monthly earnings or such average monthly earnings of the insured bears to the total amount of monthly benefits for the same loss under all such coverage upon the insured at the time such disability commences and for the return of such part of the premiums paid during such two years as shall exceed the pro ratio amount of the premiums for the benefits actually paid hereunder; but this shall not operate to reduce the total monthly amount of benefits payable under all such coverage upon the insured below the sum of two hundred dollars or the sum of the monthly benefits specified in such coverages, whichever is the lesser, nor shall it operate to reduce benefits other than those payable for loss of time. [The foregoing policy provision may be inserted only in a policy which the insured has the right to continue in force subject to its terms by the timely payment of the premiums (a) until at least age fifty or (b) in the case of a policy issued after age forty-four, for at least five years from its date of issue. The insurer may, at its option, include in this provision a definition of `valid loss-of-time coverage', approved as to form by the director or his designee, which definition shall be limited in subject matter to coverage provided by governmental agencies or by organizations subject to regulation by insurance law or by insurance authorities of this or any other state of the United States or any province of Canada or to any other coverage the inclusion of which may be approved by the director or his designee or any combination of such coverages. In the absence of such definition such term shall not include any coverage provided for such insured pursuant to any compulsory benefit statute, including any workers' compensation or employer's liability statute, or benefits provided by union welfare plans or by employer or employee benefit organization.]
(7) A provision as follows:
UNPAID PREMIUM:
When a claim is paid, any premium due and unpaid may be deducted from the claim payment.
(8) A provision as follows:
ILLEGAL OCCUPATION:
The company is not liable for any loss which results from the insured committing or attempting to commit a felony or from the insured engaging in an illegal occupation.
(9) A provision as follows:
INTOXICANTS AND NARCOTICS:
The company is not liable for any loss resulting from the insured being drunk or under the influence of any narcotic unless taken on the advice of a physician."
Name changed
SECTION 761. Section 38-71-410 of the 1976 Code is amended to read:
"Section 38-71-410. If any provision of Sections 38-71-340 and 38-71-370 is in whole or in part inapplicable to or inconsistent with the coverage provided by a particular form of policy, the insurer, with the approval of the director or his designee, shall omit from the policy any inapplicable provision or part of a provision and shall modify any inconsistent provision or part of the provision in a manner as to make the provision as contained in the policy consistent with the coverage provided by the policy."
Hearing before director or his designee; appeals to Administrative Law Judge Division
SECTION 762. Section 38-71-510 of the 1976 Code is amended to read:
"Section 38-71-510. The purpose of this subarticle is to provide reasonable standardization and simplification of terms and coverages of individual accident and health insurance policies or subscriber contracts of nonprofit hospital, medical, and dental service associations in order to facilitate public understanding and comparison, to eliminate provisions contained in individual accident and health insurance policies or subscriber contracts of nonprofit hospital, medical, and dental service associations which may be misleading or unreasonably confusing in connection with the purchase of the coverage or with the settlement of claims, to provide for full disclosure in the sale of accident and health coverages, and to provide for the termination of approval, after due notice and hearing before the director or his designee, of policy forms which do not comply with the minimum standards. Any decision or determination by the director or his designee to terminate approval pursuant to the administrative hearing may be appealed to the Administrative Law Judge Division as provided in accordance with Section 38-3-210."
Name changed
SECTION 763. Section 38-71-530 of the 1976 Code is amended to read:
"Section 38-71-530. (a) The department shall promulgate regulations to establish specific standards, including standards of full and fair disclosure, that set forth the manner, content, and required disclosure for the sale of individual policies of accident and health insurance or subscriber contracts of nonprofit hospital, medical, and dental service associations which must be in addition to and in accordance with applicable laws of this State and which may cover, but are not limited to, the following:
(1) Terms of renewability.
(2) Initial and subsequent conditions of eligibility.
(3) Nonduplication of coverage provisions.
(4) Coverage of dependents.
(5) Preexisting conditions.
(6) Termination of insurance.
(7) Probationary periods.
(8) Limitations.
(9) Exceptions.
(10) Reductions.
(11) Elimination periods.
(12) Requirements for replacement.
(13) Recurrent conditions.
(14) The definition of terms including, but not limited to, the following:
(i) Hospital.
(ii) Accident.
(iii) Sickness.
(iv) Injury.
(v) Physician.
(vi) Accidental means.
(vii) Total disability.
(viii) Partial disability.
(ix) Nervous disorder.
(x) Guaranteed renewable.
(xi) Noncancelable.
(b) The department may promulgate regulations that specify prohibited policy provisions not otherwise specifically authorized by law which in the opinion of the director or his designee are unjust, unfair, or unfairly discriminatory to the policyholder, any person insured under the policy, or beneficiary."
Name changed
SECTION 764. Section 38-71-540 of the 1976 Code is amended to read:
"Section 38-71-540. (a) The department shall promulgate regulations to establish minimum standards for benefits under each of the following categories of coverage in individual policies of accident and health insurance or subscriber contracts of nonprofit hospital, medical, and dental service associations, other than conversion policies issued pursuant to a contractual conversion privilege under a group policy:
(1) basic hospital expense coverage;
(2) basic medical-surgical expense coverage;
(3) hospital confinement indemnity coverage;
(4) major medical expense coverage;
(5) disability income protection coverage;
(6) accident-only coverage; and
(7) specified disease or specified accident coverage.
(b) This section does not preclude the issuance of any policy or contract which combines two or more of the categories of coverage enumerated in items (1) through (6) of subsection (a) of this section.
(c) No policy or contract may be delivered or issued for delivery in this State which does not meet the prescribed minimum standards for the categories of coverage listed in items (1) through (7) of subsection (a) of this section which are contained within the policy or contract unless the director or his designee finds the policy or contract will be in the public interest and the policy or contract meets the requirements set forth in Section 38-71-310.
(d) The department shall by regulation prescribe the method of identification of policies and contracts based upon coverages provided."
Name changed
SECTION 765. Section 38-71-550(b) of the 1976 Code is amended to read:
"(b) The department shall by regulation prescribe the format and content of the outline of coverage required by subsection (a) of this section. For purposes of this subsection (b), `format' means style, arrangement, and overall appearance, including such items as the size, color, and prominence of type and the arrangement of text and captions. The outline of coverage shall include:
(1) A statement identifying the applicable category or categories of coverage provided by the policy or contract as prescribed in Section 38-71-540.
(2) A description of the principal benefits and coverage provided in the policy or contract.
(3) A statement of the exceptions, reductions, and limitations contained in the policy or contract.
(4) A statement of the renewal provisions, including any reservation by the insurer of a right to change premiums.
(5) A statement that the outline is a summary of the policy or contract issued or applied for and that the policy or contract should be consulted to determine governing contractual provisions."
Name changed; appeals to Administrative Law Judge Division; etc.
SECTION 766. Section 38-71-720 of the 1976 Code is amended to read:
"Section 38-71-720. No policy or contract of group accident, group health, or group accident and health insurance may be issued or delivered in this State, nor may any application, endorsement, or rider which becomes a part of the policy be used, until a copy of the form thereof has been filed with and approved by the director or his designee except as exempted by regulation of the department as permitted by Section 38-61-20. The director or his designee may disapprove the form if the form (1) does not meet the requirements of law, (2) contains any provisions which are unfair, deceptive, ambiguous, misleading, or unfairly discriminatory, or (3) is going to be solicited by means of advertising, communication, or dissemination of information which is deceptive or misleading. However, if no action has been taken to approve or disapprove a policy, contract, certificate, application, endorsement, or rider after the documents have been filed for ninety days, they may be issued and delivered until or unless subsequently disapproved by the director or his designee. This time period may be extended thirty days if the director or his designee gives written notice to the filer that he needs additional time to review the filing. The director or his designee shall, as soon as is practicable, notify in writing the insurer which has filed the form of his approval or disapproval. In the event of disapproval the notice must contain the reasons for disapproval and the insurer is entitled to a public hearing thereon. At any time after having given written approval thereof the director or his designee may, after a public hearing of which at least thirty days' written notice has been given, withdraw approval if he finds that the forms (1) do not meet the requirements of law, (2) contain any provisions which are unfair, deceptive, ambiguous, misleading, or unfairly discriminatory, or (3) are being solicited by means of advertising, communication, or dissemination of information which is deceptive or misleading. The withdrawal of approval must be effected by written notice to the insurer and the insurer is entitled to a public hearing thereon. Any action or decision of the director or his designee to withdraw approval may be appealed to the Administrative Law Judge Division in accordance with Section 38-3-210."
Name changed
SECTION 767. Section 38-71-730(6) of the 1976 Code is amended to read:
"(6) A group policy or subscriber contract of accident and health insurance which is advertised, marketed, or designed primarily as a supplement to reimbursements under Medicare for the hospital, medical, or surgical expenses of persons eligible for Medicare must equal, and may exceed, the minimum standards for Medicare supplement policies as contained in the regulations promulgated by the department."
Name changed
SECTION 768. Section 38-71-735 of the 1976 Code is amended to read:
"Section 38-71-735. No policy of group accident, group health, or group accident and health insurance may be delivered in this State unless it contains in substance the following provisions, or provisions which in the opinion of the director or his designee are more favorable to the persons insured, or at least as favorable to the persons insured, and more favorable to the policyholder. However, (1) items (f) and (k) do not apply to policies issued to a creditor; (2) the standard provisions required for individual policies do not apply to group policies; and (3) if any provision of this section is in whole or in part inapplicable to or inconsistent with the coverage provided by a particular form of policy, the insurer, with the approval of the director or his designee, shall omit from the policy any inapplicable provision or part of a provision, and shall modify any inconsistent provision or part of the provision in a manner as to make the provision contained in the policy consistent with the coverage provided by the policy:
(a) A provision that the policyholder is entitled to a grace period of thirty-one days for the payment of any premium due except the first, during which grace period the policy continues in force, unless the policyholder has given the insurer written notice of discontinuance in advance of the date of discontinuance and in accordance with the terms of the policy. The policy may provide that the policyholder is liable to the insurer for the payment of a pro ratio premium for the time the policy was in force during the grace period.
(b) A provision that the validity of the policy may not be contested after it has been in force for two years from its date of issue and that no statement, except fraudulent misstatements, made by any person covered under the policy relating to insurability may be used in contesting the validity of the insurance with respect to which the statement was made after the insurance has been in force prior to the contest for a period of two years during the person's lifetime nor unless it is contained in a written instrument signed by the person making the statement. The provision does not preclude the assertion at any time of defenses based upon the person's ineligibility for coverage under the policy or upon other provisions in the policy.
(c) A provision that a copy of the application, if any, of the policyholder must be attached to the policy when issued, that all statements made by the policyholder or by the persons insured are considered representations and not warranties, and that no statement made by any person insured may be used in any contest unless a copy of the instrument containing the statement is or has been furnished to the person or, in the event of the death or incapacity of the insured person, to the individual's beneficiary or personal representative.
(d) A provision setting forth the conditions, if any, under which the insurer reserves the right to require a person eligible for insurance to furnish evidence of individual insurability satisfactory to the insurer as a condition to part or all of the individual's coverage.
(e) If the premiums or benefits vary by age, there must be a provision specifying an equitable adjustment of premiums or of benefits, or both, to be made in the event the age of a covered person has been misstated. The provision must contain a clear statement of the method of adjustment to be used.
(f) A provision that the insurer will issue to the policyholder for delivery to each person insured a certificate setting forth a statement as to the insurance protection to which that person is entitled, to whom the insurance benefits are payable, and a statement as to any family member's or dependent's coverage.
(g) A provision that written notice of claim must be given to the insurer within twenty days after the occurrence or commencement of any loss covered by the policy. Failure to give notice within the time does not invalidate nor reduce any claim if it can be shown not to have been reasonably possible to give the notice and that notice was given as soon as was reasonably possible.
(h) A provision that the insurer will furnish to the person making claim, or to the policyholder for delivery to such person, such forms as are usually furnished by it for filing proof of loss. If the forms are not furnished before the expiration of fifteen days after the insurer received notice of any claim under the policy, the person making the claim is considered to have complied with the requirements of the policy as to proof of loss upon submitting within the time fixed in the policy for filing proof of loss, written proof covering the occurrence, character, and extent of the loss for which claim is made.
(i) A provision that in the case of claim for loss of time for disability, written proof of the loss must be furnished to the insurer within ninety days after the commencement of the period for which the insurer is liable, and that subsequent written proofs of the continuance of the disability must be furnished to the insurer at intervals the insurer may reasonably require, and that in the case of claim for any other loss, written proof of the loss must be furnished to the insurer within ninety days after the date of the loss. Failure to furnish proof within the time does not invalidate nor reduce any claim if it was not reasonably possible to furnish the proof within that time so long as the proof is furnished as soon as reasonably possible and in no event, except in the absence of legal capacity of the claimant, later than one year from the time proof is otherwise required.
(j) A provision that all benefits payable under the policy other than benefits for loss of time will be paid not more than sixty days after receipt of proof of the loss. Subject to proof of loss, all accrued benefits payable under the policy for loss of time will be paid not less frequently than monthly during the continuance of the period for which the insurer is liable, and that any balance remaining unpaid at the termination of liability will be paid as soon as possible after receipt of the proof.
(k) A provision that benefits for loss of life of the person insured are payable to the beneficiary designated by the person insured. If the policy contains conditions pertaining to family status the beneficiary may be the family member specified by the policy terms. In either case, payment of these benefits is subject to the provisions of law of this State if no such designated or specified beneficiary is living at the death of the person insured. All other benefits of the policy are payable to the person insured. The policy also may provide that if any benefit is payable to the estate of a person or to a person who is a minor or otherwise not competent to give a valid release, the insurer may pay the benefit, up to an amount not exceeding five thousand dollars, to any relative by blood or connection by marriage of the person who is considered by the insurer to be equitably entitled to the benefit.
(l) A provision that the insurer at its own expense may examine the person of the individual for whom claim is made as often as reasonably necessary while a claim is pending and in cases of death of the insured the insurer at its own expense also may have an autopsy performed during the period of contestability unless prohibited by law. The autopsy must be performed in this State.
(m) A provision that no action at law or in equity may be brought to recover on the policy before the expiration of sixty days after written proof of loss has been filed in accordance with the requirements of the policy and that no such action may be brought at all unless brought within six years after the time written proof of loss is required to be furnished.
(n) In the case of a policy issued to a creditor, a provision that the insurer will furnish the policyholder for delivery to each debtor insured under the policy a certificate of insurance describing the coverage and specifying that the benefits payable first must be applied to reduce or extinguish the indebtedness."
Name changed
SECTION 769. Section 38-71-750 of the 1976 Code is amended to read:
"Section 38-71-750. (1) No group accident, group health, or group accident and health insurance coverage may be extended to residents of this State under a policy issued outside this State which does not provide in substance the provisions of this article unless the director or his designee determines that certain provisions are not appropriate for the coverage provided.
(2) Any insurer extending blanket or group accident, health, or accident and health insurance under a policy issued outside this State to residents of this State shall comply with the requirements of this State relating to advertising and to claims settlement practices with respect to the insurance.
(3) Upon request of the director or his designee, copies of policies and certificates under a policy of group accident, group health, or group accident and health insurance issued outside this State and covering residents of this State must be made available on an informational basis only. However, mass-marketed accident, health, or accident and health insurance policies and certificates shall receive prior approval of the director or his designee before they can be offered for sale to residents of this State."
Name changed; defined; powers of director
SECTION 770. Section 38-71-920(6) of the 1976 Code is amended to read:
"(6) `Director' means the person who is appointed by the Governor upon the advice and consent of the Senate and who is responsible for the operation and management of the Department of Insurance, including all of its divisions. The director may appoint or designate the person or persons who shall serve at the pleasure of the director to carry out the objectives or duties of the department as provided by law. Furthermore, the director may bestow upon his designee or deputy director any duty or function required of him by law in managing or supervising the Insurance Department."
Name changed
SECTION 771. Section 38-71-920(11)(c) of the 1976 Code is amended to read:
"(c) The director or his designee may approve the establishment of additional distinct groupings upon application to the director or his designee and a finding by the director or his designee that action would enhance the efficiency and fairness of the small employer insurance marketplace."
Name changed
SECTION 772. Section 38-71-920(12) of the 1976 Code is amended to read:
"(12) `Actuarial certification' means a written statement by a member of the American Academy of Actuaries or other individual acceptable to the director or his designee that a small employer insurer is in compliance with the provisions of Section 38-71-940, based upon the person's examination, including a review of the appropriate records and of the actuarial assumptions and methods utilized by the insurer in establishing premium rates for applicable health insurance plans."
Name changed
SECTION 773. Section 38-71-950(B) of the 1976 Code is amended to read:
"(B) A small employer insurer may cease to renew all plans under a form within a class of business or may cease to renew all plans under a class of business. In either case the insurer shall provide notice to all affected health insurance plans and to the commissioner in each state in which an affected insured individual is known to reside at least ninety days before termination of coverage. An insurer which exercises its right to cease to renew all plans under a form within a class of business may not transfer or otherwise provide coverage to any of the employers from the nonrenewed form or class of business unless the insurer offers to transfer or provide coverage to all affected employers and eligible employees and dependents without regard to case characteristics, claim experience, health status, or duration of coverage. In addition, any insurer which exercises its right to cease to renew all plans within a class of business may not establish a new class of business for five years after the nonrenewal of the plans without prior approval of the director or his designee."
Name changed
SECTION 774. Section 38-71-970 of the 1976 Code is amended to read:
"Section 38-71-970. (A) A small employer insurer shall maintain at its principal place of business a complete and detailed description of its rating practices and renewal underwriting practices, including information and documentation which demonstrate that its rating methods and practices are based upon commonly accepted actuarial assumptions and are in accordance with sound actuarial principles.
(B) Each small employer insurer shall file each March first with the department an actuarial certification certifying that the insurer is in compliance with this section and that the rating methods of the insurer are actuarially sound. A copy of the certification must be retained by the insurer at its principal place of business.
(C) A small employer insurer shall make the information and documentation described in subsection (A) available to the director or his designee upon request. The information must be considered proprietary and trade secret information and is not subject to disclosure by the director or his designee to persons outside of the department except as agreed to by the insurer or as ordered by a court of competent jurisdiction."
Name changed
SECTION 775. Section 38-71-980 of the 1976 Code is amended to read:
"Section 38-71-980. The director or his designee may suspend all or any part of Section 38-71-940 as to the premium rates applicable to one or more small employers for one or more rating periods upon a filing by the small employer insurer and a finding by the director or his designee that either the suspension is reasonable in light of the financial condition of the insurer or that the suspension would enhance the efficiency and fairness of the marketplace for small employer health insurance."
Name changed
SECTION 776. Section 38-71-1010(6) of the 1976 Code is amended to read:
"(6) under a policy or contract issued to any other similar group which, in the discretion of the director or his designee, may be eligible for issuance of a blanket accident and health policy or contract either under special circumstances, exceptional hazards, or for short periods of duration."
Name changed
SECTION 777. Section 38-71-1020 of the 1976 Code is amended to read:
"Section 38-71-1020. All blanket accident and health insurance policies are subject to the provisions of Articles 1 and 3 of this chapter. However, no policy is required to contain any of the required policy provisions set forth in Section 38-71-340. However, no policy may contain any provision relative to notice of claim, proofs of loss or time of payment of claims, or the time within which suit may be brought upon the policy which, in the opinion of the director or his designee, is less favorable to the insured than would be permitted by the required policy provisions."
Name changed; etc.
SECTION 778. Section 38-71-1110 of the 1976 Code is amended to read:
"Section 38-71-1110. `Accident and health insurance on a franchise plan' is that form of accident and health insurance issued to (1) three or more employees of any corporation, copartnership, or individual employer or any governmental corporation, agency, or department or (2) ten or more members of any trade or professional association, labor union, or any other association having had an active existence for at least two years when the association or union has a constitution or bylaws and is formed in good faith for purposes other than that of obtaining insurance, when (a) the insureds, with or without their dependents, are issued the same form of an individual policy varying only as to amounts and kinds of coverage applied for by the insureds and (b) the employer, union, or association has approved and endorsed the policy being sold to its employees or members. Accident and health insurance on a franchise plan may be written under rates less than the usual rates for the insurance, but all premium rates and discounts the insurer proposes to use must be filed with the department and approved by the director or his designee as required by Section 38-71-310."
Name changed; defined; powers of director
SECTION 779. Section 38-72-40 of the 1976 Code is amended to read:
"Section 38-72-40. Unless the context requires otherwise, as used in this chapter:
(1) `Long term care insurance' means an insurance policy or a rider advertised, marketed, offered, or designed to provide benefits for not less than twelve consecutive months for each covered person on an expense incurred, indemnity, prepaid, or other basis, for one or more necessary or medically necessary diagnostic, preventive, therapeutic, rehabilitative, maintenance, or personal care services, provided in a setting other than an acute care unit of a hospital. The term includes group and individual annuities and life insurance policies or riders which provide directly or which supplement long term care insurance. It also includes a policy or rider which provides for payment of benefits based upon cognitive impairment or the loss of functional capacity. Long term care insurance may be issued by insurers, fraternal benefit societies, nonprofit health, hospital, and medical service corporations, prepaid health plans, health maintenance organizations, or a similar organization to the extent they otherwise are authorized to issue life or health insurance. Long term care insurance does not include an insurance policy offered primarily to provide basic medicare supplement coverage, basic hospital expense coverage, basic medical-surgical expense coverage, hospital confinement indemnity coverage, major medical expense coverage, disability income or related asset protection coverage, accident only coverage, specified disease or specified accident coverage, or limited benefit health coverage.
(2) `Applicant' means:
(a) in the case of an individual long term care insurance policy the person who seeks to contract for benefits; and
(b) in the case of a group long term care insurance policy, the proposed certificate holder.
(3) `Certificate' means any certificate issued under a group long term care insurance policy, which policy has been delivered or issued for delivery in this State.
(4) `Director' means the person who is appointed by the Governor upon the advice and consent of the Senate and who is responsible for the operation and management of the Department of Insurance, including all of its divisions. The director may appoint or designate the person or persons who shall serve at the pleasure of the director to carry out the objectives or duties of the department as provided by law. Furthermore, the director may bestow upon his designee or deputy director any duty or function required of him by law in managing or supervising the insurance department.
(5) `Group long term care insurance' means a long term care insurance policy which is delivered or issued for delivery in this State and issued to:
(a) one or more employers or labor organizations, or to a trust or to the trustees of a fund established by one or more employers or labor organizations or a combination thereof, for employees or former employees or a combination thereof, or for members or former members or a combination thereof of the labor organizations; or
(b) any professional, trade, or occupational association for its members or former or retired members or combination thereof if such association:
(i) is composed of individuals all of whom are or were actively engaged in the same profession, trade, or occupation; and
(ii) has been maintained in good faith for purposes other than obtaining insurance; or
(c) an association or to a trust or to the trustee of a fund established, created, or maintained for the benefit of members of one or more associations. Prior to advertising, marketing, or offering the policy within this State, the association or the insurer of the association shall file evidence with the department that the association has at the outset a minimum of one hundred persons and has been organized and maintained in good faith for purposes other than that of obtaining insurance, has been in active existence for at least one year, and has a constitution and bylaws which provide that the association holds regular meetings not less than annually to further the purposes of its members, except for credit unions, the association collects dues or solicits contributions from members, and the members have voting privileges and representation on the governing board and committees. Ninety days after the filing, the association is considered to have satisfied the organizational requirements unless the director or his designee makes a finding that the association does not satisfy those organizational requirements.
(d) a group other than as described in items (5)(a), (5)(b), and (5)(c), subject to a finding by the director or his designee that the issuance of the group policy is not contrary to the best interest of the public, the issuance of the group policy would result in economies of acquisition or administration, and the benefits are reasonable in relation to the premiums charged.
(6) `Policy' means any policy, contract, subscriber agreement, rider, or endorsement delivered or issued for delivery in this State by an insurer, fraternal benefit society, nonprofit health, hospital, or medical service corporation, prepaid health plan, health maintenance organization, or any similar organization."
Name changed
SECTION 780. Section 38-72-60(A) of the 1976 Code is amended to read:
"(A) The director or his designee shall submit to the General Assembly for approval regulations to carry out the purposes of this chapter."
Name changed
SECTION 781. Section 38-72-60(C)(3) of the 1976 Code is amended to read:
"(3) The director or his designee may extend the limitation periods set forth in items (1) and (2) of this subsection as to specific age group categories in specific policy forms upon findings that the extension is in the best interest of the public."
Name changed
SECTION 782. Section 38-72-60(F)(1)(a) of the 1976 Code is amended to read:
"(a) The director or his designee shall prescribe a standard format, including style, arrangement, and overall appearance, and the content of an outline of coverage."
Name changed; duties, powers transferred to Administrative Law Judge Division; language deleted; etc.
SECTION 783. Chapter 73, Title 38 of the 1976 Code is amended to read:
"CHAPTER 73
Property, Casualty, Inland Marine, and Surety Rates
and Rate-making Organizations
Article 1
General Provisions
Section 38-73-10. (a) The purposes of this chapter are to:
(1) promote the public welfare by regulating insurance rates to the end that they may not be excessive, inadequate, or unfairly discriminatory and to authorize and regulate cooperative action among insurers in rate making and in other matters within the scope of this chapter;
(2) empower the director or his designee to fix, establish, and promulgate any uniform statistical plan necessary or appropriate to obtain all automobile insurance loss and loss adjustment expense experience, other expense experience, and all other appropriate statistical and financial data from insurers, rating organizations, and advisory organizations engaged in an automobile insurance business in this state to the end that the department shall promulgate the risk classification and territorial plans to be used by all insurers of automobile insurance in this state and in order that the director or his designee may test the risk and territorial differentials previously established against the most recently available loss experience;
(3) provide that investment income accruing to automobile insurers is taken into consideration in the approval of rates or premium charges and in the determination of any net loss incurred by the South Carolina Reinsurance Facility and to make provision for the securing by the department of all necessary or appropriate financial data for purposes of ascertaining and determining the investment income and the profits from realized and unrealized capital gains of each automobile insurer doing business in this State.
Nothing in this chapter is intended to prohibit or discourage reasonable competition.
(b) This chapter must be liberally interpreted to carry into effect the purposes of this chapter.
Section 38-73-20. (a) This chapter applies to (1) fire and allied lines and inland marine insurance, as defined in Section 38-73-310 and (2) casualty insurance, including fidelity, surety, and guaranty bonds, and to all other forms of automobile insurance, in either case on risks located or operations in this State. However, Article 3 and Article 5 of this chapter apply only to the respective classes of insurance as stated in Sections 38-73-310 and 38-73-410.
(b) This chapter does not apply to:
(1) reinsurance, other than joint reinsurance to the extent stated in Article 15 of this chapter;
(2) insurance of vessels or craft or their cargoes, marine builders' risks, marine protection and indemnity, or other risks commonly insured under marine, as distinguished from inland marine, insurance policies;
(3) accident and health insurance;
(4) insurance against loss of or damage to aircraft or against liability arising out of the ownership, maintenance, or use of aircraft; or
(5) life insurance.
Section 38-73-30. If any kind of insurance, subdivision, or combination thereof or type of coverage subject to this chapter is also subject to regulation by another rate regulatory act of this State or other law of this State, an insurer to which the other act or law and this chapter are otherwise applicable shall file with the department a designation as to which rate regulatory chapter or act or law is applicable to it with respect to that kind of insurance, subdivision, or combination thereof or type of coverage.
Section 38-73-40. The department may promulgate statistical plans, reasonably adapted to each of the rating systems on file with the department, which may be modified from time to time and which must be used thereafter by each insurer in the recording and reporting of its loss and countrywide expense experience, in order that the experience of all insurers may be made available at least annually in such form and detail as may be necessary to aid him in determining whether rating systems comply with the standards set forth in Sections 38-73-330 and 38-73-430, as the case may be. The plans may also provide for the recording and reporting of expense experience items which are specially applicable to this State and are not susceptible of determination by a prorating of countrywide expense experience. In promulgating these plans, the department shall give due consideration to the rating systems on file with it and, in order that such plans may be as uniform as is practicable among the several states, to the form of the plans used for rating systems in other states. The department may designate one or more rating organizations or other agencies to assist him in gathering the experience and making compilations thereof. These compilations must be made available, subject to plans promulgated by the department, to insurers and rating organizations.
Section 38-73-50. Reasonable regulations and plans may be promulgated by the department for the interchange of data necessary for the application of rating plans.
Section 38-73-60. In order to further uniform administration of rate regulatory laws, the director or his designee and every insurer and rating organization may exchange information and experience data with insurance supervisory officials, insurers, and rating organizations in other states and may consult with them with respect to rate making and the application of rating systems.
Section 38-73-70. The department may make reasonable regulations necessary to effect the purposes of this chapter.
Section 38-73-80. No person or organization may wilfully withhold information from or knowingly give false or misleading information to the director or his designee, any statistical agency designated by the director or his designee, any rating organization, or any insurer which will affect the rates or premiums chargeable under this chapter. A violation of this section subjects the one guilty of the violation to the penalties provided in Chapter 2 of this title.
Section 38-73-90. The director or his designee shall, at least once in five years, make or cause to be made an examination of each rating organization licensed in this State as provided in Section 38-73-1230. The director or his designee may, as often as he considers advisable, make or cause to be made an examination of each advisory organization referred to in Section 38-73-1510 and of each group, association, or other organization referred to in Section 38-73-1710. The reasonable costs of the examination must be paid by the rating organization, advisory organization, or group, association, or other organization examined upon presentation to it of a detailed account of the costs. The officers, manager, agents, and employees of these rating organizations, advisory organizations, or groups, associations, or other organizations may be examined at any time under oath and shall exhibit all books, records, accounts, documents or agreements governing their method of operation. These examinations are subject to the provisions of Sections 38-13-40 to 38-13-60. In lieu of an examination the director or his designee may accept the report of an examination made by the insurance supervisory official of another state pursuant to the laws of that state.
Section 38-73-110. The director or his designee may suspend the license of any rating organization or insurer which fails to comply with an order of the director or his designee within the time limited by the order or any extension thereof which the director or his designee may grant. The director or his designee may not suspend the license of any rating organization or insurer for failure to comply with an order until the time prescribed for an appeal therefrom has expired or, if an appeal has been taken, until the order has been affirmed. The director or his designee may determine when a suspension of license becomes effective and it remains in effect for the period fixed by him unless he modifies or rescinds the suspension or until the order upon which the suspension is based is modified, rescinded, or reversed.
Section 38-73-120. No penalty may be imposed and no license may be suspended or revoked except upon a written order of the director or his designee, stating his findings, made after a hearing held upon not less than thirty days' written notice to the person or organization specifying the alleged violation.
Section 38-73-130. Any insurer or rating organization aggrieved by any order or decision of the director or his designee made without a hearing may, within thirty days after notice of the order to the insurer or organization, make written request to the Administrative Law Judge Division for a hearing. The Administrative Law Judge Division shall hear the party or parties within twenty days after receipt of the request and shall give not less than ten days' written notice of the time and place of the hearing. Within fifteen days after the hearing the Administrative Law Judge Division shall affirm, reverse, or modify the previous action, specifying his reasons therefor. Pending the hearing and decision thereon the director or his designee may suspend or postpone the effective date of his previous action.
Article 3
Wind and Hail Insurance
Section 38-73-310. This article applies only to fire and allied lines and inland marine insurance, on risks located in this State. Inland marine insurance includes insurance (a) defined by statute or by interpretation thereof, (b) if not so defined or interpreted, defined by ruling of the director or his designee, or (c) as established by general custom of the business as inland marine insurance. This article does not apply to automobile insurance nor to insurance against liability arising out of the ownership, maintenance, or use of motor vehicles.
Section 38-73-320. If any kind of insurance, subdivision, or combination thereof or type of coverage subject to this article is also subject to regulation under Article 5 of this chapter, an insurer to which both articles are otherwise applicable shall file with the department a designation as to which regulatory article shall be applicable to it with respect to that kind of insurance, subdivision, or combination thereof or type of coverage.
Section 38-73-330. Rates must be made in accordance with the following provisions:
(1) Manual, minimum, and class rates, rating schedules, or rating plans must be made and adopted, except in the case of specific inland marine rates on risks specially rated.
(2) Rates may not be excessive, inadequate, or unfairly discriminatory. Due consideration must be given for installation and maintenance of nationally recognized hazard reducing systems.
(3) Due consideration must be given to past and prospective loss experience within and outside this State, to the conflagration and catastrophe hazards, to a reasonable margin for underwriting profit and contingencies, to dividends, savings, or unabsorbed premium deposits allowed or returned by insurers to their policyholders, members, or subscribers, to past and prospective expenses, both countrywide and those specially applicable to this State, and to all other relevant factors within and outside this State, and in the case of fire insurance rates consideration must be given to the experience of the fire insurance business during a period of not less than the most recent five-year period for which the experience is available. Except to the extent necessary to meet the provisions of item (2) of this section, uniformity among insurers in any matters within the scope of this section is neither required nor prohibited. Rates made in accordance with this section may be used subject to the provisions of this chapter.
Section 38-73-340. Every insurer shall file with the department, except as to inland marine risks which by general custom of the business are not written according to manual rates or rating plans, every manual, minimum, or class rate, rating schedule, or rating plan, and every other rating rule and every modification of any of the foregoing which it proposes to use. Every filing shall state the proposed effective date thereof and shall indicate the character and extent of coverage contemplated. Specific inland marine rates on risks specially rated, made by a rating organization, must be filed with the department.
Article 5
Casualty and Surety Rates
Section 38-73-410. This article applies only to casualty insurance, including fidelity, surety, and guaranty bonds, and to all other forms of automobile insurance, on risks or operations in this State.
Section 38-73-420. If any kind of insurance, subdivision, or combination thereof or type of coverage subject to this article is also subject to regulation under Article 3 of this chapter, an insurer to which both articles are otherwise applicable shall file with the department a designation as to which regulatory article shall be applicable to it with respect to that kind of insurance, subdivision, or combination thereof or type of coverage.
Section 38-73-430. Rates must be made in accordance with the following provisions:
(1) Due consideration must be given to past and prospective loss experience within and outside this State, to catastrophe hazards, if any, to a reasonable margin for underwriting profit and contingencies, to dividends, savings, or unabsorbed premium deposits allowed or returned by insurers to their policyholders, members, or subscribers, to past and prospective expenses, both countrywide and those specially applicable to this State, and to all other relevant factors within and outside of this State.
(2) The systems of expense provisions included in the rates for use by any insurer or group of insurers may differ from those of other insurers or groups of insurers to reflect the requirements of the operating methods of the insurer or group with respect to any kind of insurance or with respect to any subdivision or combination thereof for which subdivision or combination separate expense provisions are applicable.
(3) Risks may be grouped by classifications for the establishment of rates and minimum premiums, and classification rates may be modified to produce rates for individual risks in accordance with rating plans which establish standards for measuring any variations in hazards or expense provisions, or both, that can be demonstrated to have a probable effect upon losses or expenses.
(4) Rates may not be excessive, inadequate, or unfairly discriminatory.
Except to the extent necessary to meet the provisions of item (4) of this section, uniformity among insurers in any matters within the scope of this section is neither required nor prohibited.
Section 38-73-440. In determining the premium rates to be charged on automobile insurance, it is unlawful to consider race, religion, national origin, or economic status.
Section 38-73-450. (a) Every final rate or premium charge proposed to be used by an automobile insurer may not be used unless it has first been filed with the department and approved by the director or his designee as being adequate, not excessive, and not unfairly discriminatory. In connection with any hearing, action, suit, proceeding, or judicial review respecting the approval or disapproval of these rates or premium charges, the burden of persuasion falls upon the affected insurer or insurers to establish that the challenged rates or premium charges are adequate, not excessive, and not unfairly discriminatory.
(b) In the approval of automobile insurance rates and in determining whether the final rates or premium charges for automobile insurance are adequate, not excessive, and not unfairly discriminatory, the director or his designee shall take into account investment income from unearned premium and loss reserves as well as profits from investment income. Every insurer writing automobile insurance in this State shall file with the department, in a form the director or his designee orders, complete financial records showing the amount of profit on every line of automobile insurance during the previous year and shall also file records showing profits or losses from such investment income, which records shall include investment income or profit on net realized and unrealized capital gains. However, unrealized capital gains or losses may not be considered in the rate-making process.
Section 38-73-455. An automobile insurer shall offer two different rates for automobile insurance, a base rate as defined in Section 38-73-457 and an objective standards rate which is twenty-five percent above the base rate. Both of these rates are subject to all surcharges or discounts, if any, applicable under any approved merit rating plan, credit or discount plan promulgated by the department or approved by the director or his designee. Applicants, or a current policyholder, seeking automobile insurance with an insurer must be written at the base rate, unless one of the conditions or factors in subitems (1) through (8) of item (A) is present.
(A) The named insured or any operator who is not excluded in accordance with Section 38-77-340 and who resides in the same household or customarily operates an automobile insured under the same policy, individually:
(1) has obtained a policy of automobile insurance or continuation thereof through material misrepresentation within the preceding thirty-six months; or
(2) has had convictions for driving violations on three or more separate occasions within the thirty-six months immediately preceding the effective date of coverage as reflected by the motor vehicle record of each insured driver as maintained by the Motor Vehicle Division of the Department of Revenue and Taxation; or
(3) has had two or more `chargeable' accidents within the thirty-six months immediately preceding the effective date of coverage. A `chargeable' accident is defined as one resulting in bodily injury to any person in excess of three hundred dollars per person, death, or damage to the property of the insured or other person in excess of seven hundred fifty dollars. Accidents occurring under the circumstances enumerated below are not considered chargeable.
(a) The automobile was lawfully parked. An automobile rolling from a parked position is not considered as lawfully parked but is considered as operated by the last operator.
(b) The applicant or other operator or owner was reimbursed by or on behalf of a person responsible for the accident or has a judgment against this person.
(c) The automobile of an applicant or other operator was struck in the rear by another vehicle and the applicant or other operator has not been convicted of a moving traffic violation in connection with the accident.
(d) The operator of the other automobile involved in the accident was convicted of a moving traffic violation and the applicant or other operator was not convicted of a moving traffic violation in connection therewith.
(e) An automobile operated by the applicant or other operator is damaged as a result of contact with a `hit and run' driver, if the applicant or other operator so reports the accident to the proper authority within twenty-four hours or, if the person is injured, as soon as the person is physically able to do so.
(f) Accidents involving damage by contact with animals or fowl.
(g) Accidents involving physical damage, limited to and caused by flying gravel, missiles, or falling objects.
(h) Accidents occurring as a result of the operation of any automobile in response to an emergency if the operator at the time of the accident was responding to a call of duty as a paid or volunteer member of any police or fire department, first aid squad, or any law enforcement agency. This exception does not include an accident occurring after the emergency situation ceases or after the private passenger motor vehicle ceases to be used in response to the emergency; or
(4) has had one `chargeable' accident and two convictions for driving violations, all occurring on separate occasions, within the thirty-six months immediately preceding the effective date of coverage as reflected by the motor vehicle record of each insured driver as maintained by the Motor Vehicle Division of the South Carolina Department of Revenue and Taxation; or
(5) has been convicted of or forfeited bail during the thirty-six months immediately preceding the effective date of coverage for operating a motor vehicle while in an intoxicated condition or while under the influence of drugs; or
(6) has been convicted or forfeited bail during the thirty-six months immediately preceding the effective date for:
(a) any felony involving the use of a motor vehicle;
(b) criminal negligence resulting in death, homicide, or assault arising out of the operation of a motor vehicle;
(c) leaving the scene of an accident without stopping to report;
(d) theft or unlawful taking of a motor vehicle;
(e) operating during a period of revocation or suspension of registration or license;
(f) knowingly permitting an unlicensed person to drive;
(g) reckless driving;
(h) the making of material false statements in the application for licenses or registration;
(i) impersonating an applicant for license or registration or procuring a license or registration through impersonation, whether for himself or another;
(j) filing of a false or fraudulent claim or knowingly aiding or abetting another in the presentation of such a claim;
(k) failure to stop a motor vehicle when signaled by means of a siren or flashing light by a law enforcement vehicle; or
(7) has for thirty or more consecutive days during the twelve months immediately preceding the effective date of coverage, owned or operated the automobile to be insured (or if newly acquired, the automobile it replaces) without liability coverage in violation of the laws of this State; or
(8) has used the insured automobile as follows or if the insured automobile is:
(a) used in carrying passengers for hire or compensation, except that the use of an automobile for a car pool must not be considered use of an automobile for hire or compensation;
(b) used in the business of transportation of flammables or explosives;
(c) used in illegal operation; or
(d) no longer principally used and garaged within the state, but not to include students who are operating a motor vehicle registered in this State while attending an institution located in another state.
(B) In the event that one or more of the conditions or factors prescribed in items (1) through (8) of subsection (A) exist, the motor vehicle customarily operated by that individual must be written at the objective standards rate.
(C) Member companies of an affiliated group of automobile insurers may not utilize different filed rates for automobile insurance coverages which they are mandated by law to write. For the purpose of this section, an affiliated group of automobile insurers includes a group of automobile insurers under common ownership, management, or control. Those automobile insurers designated pursuant to Section 38-77-590(a), for automobile insurance risks written by them through producers designated by the facility governing board pursuant to that section, shall utilize the rates or premium charges by coverage filed and authorized for use by the rating organization licensed by the director or his designee pursuant to Article 11, Chapter 73 of this title, which has the largest number of members or subscribers for automobile insurance rates. However, those automobile insurers designated pursuant to Section 38-77-590(a) are not required to use those same rates or premium charges described in the preceding sentence for risks written by them through their authorized agents not appointed pursuant to Section 38-77-590.
(D) An automobile insurance policy may be endorsed at any time during the policy period to reflect the correct rate or premium applicable by reason of the factors or conditions described in subsection (A) which existed prior to the commencement of the policy period in which the endorsement is made, regardless of whether the factors or conditions were known or disclosed to the insurer at the commencement of the policy period. However, no policy may be endorsed during a policy period to reflect factors or conditions occurring during that policy period. A policy may be endorsed during a policy period to recognize the addition or deletion of an operator or vehicle.
(E) For purposes of determining the applicable rates to be charged an insured, an automobile insurer shall obtain and review an applicant's motor vehicle record.
Section 38-73-456. An insurer may not increase premiums on or add surcharges to automobile insurance of a person charged with a driving violation unless he is convicted of the violation. The Motor Vehicle Division of the Department of Revenue and Taxation may not report an alleged violation to insurers until the person charged is convicted and when reporting must also report the conviction date.
Section 38-73-457. Notwithstanding Sections 38-73-920 and 38-73-1210, every automobile insurer and rating organization shall, prior to October 1, 1987, file with the department a base rate, which is defined as a rate by coverage calculated solely upon the experience generated by the risk for each class and territory retained by the insurer in its voluntary book of business and which must not include experience generated by risks ceded or assumed from the Reinsurance Facility established under Section 38-73-1030. An objective standards rate by coverage must also be filed which is twenty-five percent above the base rate previously described for each class and territory. The base rate must be calculated by removing from the rate or premium charge, then in effect for the automobile insurer, that portion of the rate or premium charge attributable to the net gain or loss of the insurer as a result of participation in the operating results of the facility as required by Section 38-77-760. In determining the base rate and objective standards rate, by coverage, the director or his designee, in order that no extra premium revenue is generated by this section, shall require that the insurer's average rate, by coverage, on October 1, 1987, (computed as a weighted average of the base rate and objective standards rate, by coverage, as determined by the Commissioner), not exceed the insurer's average rate, by coverage, prior to October 1, 1987, as determined by the director or his designee. The provisions of the Administrative Procedures Act apply to any appeal of a base rate or objective standards rate brought thereunder before the Administrative Law Judge Division as provided by law. The base rate or objective standards rate approved by the director or his designee may be put into effect under bond in a similar manner that a public utility may put a proposed rate increase into effect under bond as provided by law. No insurer may file a base rate for any class or territory which is higher than the rate or premium charge, exclusive of that portion required by Section 38-73-460, approved by the director or his designee for use on October 1, 1987. As a result of this section, no insured may receive an increase in rates for other than an increase in coverage or due to the provisions of Section 38-77-280, 38-77-610, or 38-73-455, unless the insurer files additional rates in accordance with this title.
The base rate and objective standards rate filed by each insurer of automobile insurance are effective if they meet the requirements of this section, on or after July 1, 1988, for all eligible applicants and upon the renewal date, on or after July 1, 1988, for all eligible existing policyholders. If the base rate and objective standards rate filed by an automobile insurer do not meet the requirements of this section, the director or his designee shall suspend the authority of that insurer to write automobile insurance until the deficiencies are corrected.
After July 1, 1988, no rate or premium charge, exclusive of the facility recoupment charge approved or established pursuant to Section 38-77-610 may be approved for an insurer of automobile insurance unless that rate or premium charge is calculated in accordance with this section and meets the other applicable requirements of this title pertaining to the approval of rates or premium charges.
The Consumer Advocate, upon request to the director or his designee, must be provided by him with a copy of any base rate filed with the director or his designee along with any supporting materials, documents, or studies utilized to support the filed base rate. In addition, every automobile insurer and rating organization shall promptly respond to requests for information and data requested by the Consumer Advocate relating to the filed base rate. The Consumer Advocate must be afforded an opportunity for a hearing before the director or his designee on any filed base rate before it takes effect that he believes does not meet the requirements of this section. Final decisions of the director or his designee regarding this hearing are subject to the provisions of the State Administrative Procedures Act and may be appealed to the Administrative Law Judge Division as provided by law.
Section 38-73-460. In the making and approval of rates for automobile insurance, consideration must be given to the net gains or losses incurred by insurers as a result of participation in the operating results and expenses, respectively, of the South Carolina Reinsurance Facility.
Section 38-73-465. (A) In considering any rate filing or in reviewing any rate in effect for automobile insurance, or upon complaint or petition by the Consumer Advocate, or any other interested party, the director or his designee shall review the rate experience. If the insurer has realized an unfairly discriminatory, excessive, or unreasonable profit, in the opinion of the director or his designee, the director or his designee shall order the same removed and require that the individual insurer promulgate a rate which is not unfairly discriminatory, excessive, or unreasonable and order a pro ratio rebate of any unfairly discriminatory, excessive, or unreasonable amount charged together with interest at the rate of twelve percent per annum either in the form of a cash refund or as a credit toward the future premiums. The director or his designee shall rescind the order of rebate only upon a showing that compliance would cause an insolvency.
(B) In making the determination that a rate is unfairly discriminatory, excessive, or unreasonable, the insurance department, in accordance with generally accepted and reasonable actuarial techniques, shall include consideration of the following factors:
1. past and prospective loss experience within and without this State;
2. past and prospective expenses;
3. the degree of competition among insurers for the risk insured;
4. investment income. Investment income also must be given effect in all other property or casualty insurance rates and the director or his designee may order the use of similar instructions and exhibits by replacement of that company's insurance data for other lines instead of the private passenger data referenced in this subitem. Companies shall supply the information requested in this item regardless of whether or not the references to the Annual Statements change.
Exhibit 1. Expected Underwriting Results with Unchanged Premium: This exhibit must display the following data and calculations:
i. total limits premium at current level;
ii. forecasted losses;
iii. forecasted loss adjustment expenses;
iv. other underwriting expense;
v. underwriting result (profit or loss); which must be calculated as total limits premium at current level by coverage, less losses, less loss adjustment expenses, less other underwriting expenses; and
vi. underwriting result (profit or loss) as a percent of premium, which must be calculated as the ratio of underwriting result to earned premium at current levels.
Exhibit 2. Analysis of Earnings Requirements: This exhibit must display the following information:
i. the amount of surplus allocated to each coverage for South Carolina private-passenger automobile insurance as calculated in investment income Exhibit 4, Line 4;
ii. the target rate of return on surplus which the filer believes is appropriate for the coverage in question. Testimony and evidence in support of this target rate of return must accompany the filing;
iii. the required dollar return on surplus to produce the target rate of return;
iv. the ratio of investment income to premium earned as calculated on Investment Income Exhibit 4, Line 11;
v. forecasted South Carolina premium earned by coverage;
vi. the expected dollar return from investment calculated by multiplying the ratio of investment income to premium earned by forecasted premium earned;
vii. required underwriting return calculated as the required return on surplus less the dollar return from investment; and
viii. the ratio of the required underwriting return to forecasted premium earned.
EXHIBIT 1.
EXPECTED UNDERWRITING RESULTS WITH UNCHANGED
PREMIUM
BODILY PROPERTY COMPRE- COLLISION
INJURY DAMAGE HENSIVE
1. Earned Premium at
Current Level $____ $____ $____ $____
2. Forecasted Loss
$____ $____ $____ $____
3. Forecasted Loss
BODILY PROPERTY COMPRE- COLLISION
INJURY DAMAGE HENSIVE
Adjustment $____ $____ $____ $____
4. Other Underwriting
Expenses $____ $____ $____ $____
5. Underwriting Result $____ $____ $____ $____
6. Underwriting Result
as a Percent of
Premium _____% _____% _____% ____%
EXHIBIT 2.
ANALYSIS OF EARNINGS REQUIREMENTS
BODILY PROPERTY COMPRE- COLLISION
INJURY DAMAGE HENSIVE
1. Surplus by Line,
Inv. Inc,
Exhibit 4, Line 4 $_______ $________ $________ $________
2. Target Rate of
Return on Surplus ______% ______% ______% ______%
3. Required on
Surplus (1) x (2) $________ $________ $_______ $________
4. Ratio of Investment
Income to Premium
Earned Inv. Inc.
Exhibit 4, Line 11 _________ _________ _________ _________
5. Forecasted Premium
Earned $________ $________ $________ $________
6. Return from Investment
(4) x (5) $________ $________ $________ $________
7. Required Underwriting
Return (3)-(6) $________ $________ $________ $________
8. Ratio, Required
Underwriting to
Premium Earned
(7)/(5) ______% ______% ______% ______%
Instructions for Completing Investment
Income Exhibits
(A) Each filer shall provide the following exhibits pertaining to investment income associated with private passenger automobile insurance in the formats specified by Investment Income Exhibits 1, 2, 3, and 4.
1. Investment Income Exhibit 1: The filer shall provide the following information according to the format specified in Investment Income Exhibit 1, Investment Income from Loss and Loss Expense Reserves:
i. Net investment gain, from the filer's most recent annual statement, page 4, line 9a;
ii. cash and invested assets, from the filer's most recent annual statement, page 2, line 8A, for the two most recent years and mean cash and invested assets calculated for those two years;
iii. rate of return on investments calculated as the ratio of net investment gain to mean cash and invested assets;
iv. South Carolina loss reserves (Incl. IBNR) by coverage as of December thirty-first of the two most recent calendar years;
v. South Carolina loss adjustment expense reserves (Incl. IBNR) as of December thirty-first of the two most recent calendar years;
vi. mean loss and loss adjustment expense reserves for the period;
vii. premium earned by coverage;
viii. the ratio of loss and loss expense reserves to premium earned; and
ix. investment income from reserves as a percent of premium earned.
2. Investment Income Exhibit 2: The filer shall provide the following information according to the format specified in Investment Income Exhibit 2, Investment Income from Unearned Premium Reserves:
i. South Carolina unearned premium reserves by coverage as of December thirty-first of the two most recent calendar years and the mean unearned premium reserve calculated for that period;
ii. premium earned by coverage;
iii. the ratio of unearned premium reserve to earned premium, by coverage;
iv. rate of return on investments; and
v. investment income as a percent of premium earned, by coverage.
3. Investment Income Exhibit 3: Each filer shall provide the following information according to the format specified in Investment Income Exhibit 3, Companywide Reserves, Surplus, and Invested Assets. The references on the exhibit pertain to the filer's most recent annual statement:
i. loss reserves for the most recent calendar year;
ii. loss adjustment expenses reserves for the most recent calendar year and the ratio of unpaid loss adjustment expenses to unpaid losses;
iii. unearned premium reserves for the most recent calendar year;
iv. total reserves;
v. cash and invested assets as of December thirty-first of the most recent calendar year;
vi. surplus as of December thirty-first of the most recent calendar year;
vii. the percent of surplus invested, calculated as cash and invested assets less reserves divided by surplus; and
viii. the ratio of surplus to reserves.
4. Investment Income Exhibit 4: The filer shall provide the following information according to the format specified in Investment Income Exhibit 4, Investment Income as a percent of premium:
i. items 1 through 3 on the exhibit mean South Carolina premium, loss, and loss adjustment reserves, and the sum of these three components of reserves, by coverage;
ii. item 4 of the exhibit means the dollar amount of South Carolina surplus by coverage, calculated by multiplying total South Carolina reserves by coverage times the ratio of surplus to reserves;
iii. items 5 and 6 of the exhibit mean the dollar amount of invested South Carolina surplus by coverage, calculated as the product of South Carolina surplus times the percent of surplus invested;
iv. items 7 through 9 of the exhibit mean the sum of South Carolina reserves and surplus and the dollar amount of investment income earned on these reserves and surplus;
v. items 10 and 11 of the exhibit mean investment income as a percent of premium earned by coverage.
Charts To Follow
INVESTMENT INCOME EXHIBIT 1.
INVESTMENT INCOME FROM LOSS AND LOSS EXPENSE
RESERVES, SOUTH CAROLINA
1. Net Investment Gain,
Annual Statement
P-4, Line 9a $________
2. Cash Invested Assets,
Annual Statement
P-2, Line 9a
a. As of * $________
t. As of ** $________
Mean Cash & Invested Assets $________
3. Rate of Return on Investments (1./2c.) ______%
BODILY PROPERTY COMPRE- COLLISION
INJURY DAMAGE HENSIVE
4. S.C. Loss Reserves
a. As of * $________ $________ $________ $________
b. As of ** $________ $________ $________ $________
5. S.C. Loss Adjustment
Expense Reserves
a. As of * $________ $________ $________ $________
b. As of ** $________ $________ $________ $________
6. Mean Loss & LAX Reserves
((4a. + 4b.)/2) +
((5a. + 5b.)/2) $________ $________ $________ $________
7. Premium Earned * $________ $________ $________ $________
8. Ratio Loss & LAX Reserves
to Earned Premium
(6./7.) ______% ______% ______% ______%
9. Investment Income as a
Percent of Premium
(3. X 8.) ______% ______% ______% ______%
* Current Calendar Year Available
** Previous Calendar Year Available
INVESTMENT INCOME EXHIBIT 2.
INVESTMENT INCOME FROM UNEARNED PREMIUM RESERVE,
SOUTH CAROLINA
BODILY PROPERTY COMPRE- COLLISION
INJURY DAMAGE HENSIVE
1. S.C. Unearned Premium
Reserves
a. As of * $________ $________ $________ $________
b. As of ** $________ $________ $________ $________
c. Mean Premium Reserve
(1a. + 1b.)/2 $ $
2. Premium Earned * $________ $________ $________ $________
3. Ratio, Unearned Premium
Reserves to Earned
Premium (1c./2.) ______% ______% ______% ______%
4. Rate of Return on
Investments
Investment Income
Exhibit 1, Line 3 ______% ______% ______% ______%
5. Investment Income as a
Percent of Premium
(3) X (4) ______% ______% ______% ______%
* Current Calendar Year Available
** Previous Calendar Year Available
INVESTMENT INCOME EXHIBIT 3.
COMPANYWIDE RESERVES, SURPLUS AND
INVESTED ASSETS
ITEM AMOUNT ANNUAL
REFERENCE
STATEMENT
1. Loss Reserve * Page 10, Part 3A.
$________ Line 32, Col. 5
2. Loss Adjustment Page 10, Part 3A,
Reserve * $________ Line 32, Col. 6
3. Unearned Premium* Page 7, Part 2,
$________ Line 31, Col. 3
4. Total Reserves
(1 +2 +3) $________
5. Cash and Invested Page 2, Line 8A,
Assets * $________ Col. 1
6. Surplus* Page 4, Line 32,
$________ Col. 1
7. Percent of
Surplus Invested
((5 - 4)/6) ________%
8. Rate of Surplus
to Reserves ________%
(6/4)
__________
*Current Calendar Year Available
INVESTMENT INCOME EXHIBIT 4.
INVESTMENT INCOME AS A PERCENT OF PREMIUM,
SOUTH CAROLINA
BODILY PROPERTY COMPRE- COLLISION
INJURY DAMAGE HENSIVE
1. Mean S.C. Premium
Reserve Investment Income
Exhibit 2, Line 1c. $_______ $_______ $_______ $_______
2. Mean S.C. Loss &
Loss Adj. Reserve Investment
Income Exhibit 1,
Line 6 $_______ $_______ $_______ $_______
3. Total S.C. Reserves $_______ $_______ $_______ $_______
4. S.C. Surplus,
(3) X Inv. Inc. Exhibit
3, Line 8 $_______ $_______ $_______ $_______
5. Percent of Surplus
Invested Investment Income
Exhibit 3, Line 7 _____% _____% _____% _____%
(4)X(5) $_______ $_______ $_______ $_______
7. Sum, Reserves, and
Invested Surplus
(3)+(6) $_______ $_______ $_______ $_______
8. Rate of Return on
Investments Investment
Income Exhibit 1,
Line 3 ______% ______% ______% ______%
9. Investment Income
Earned on Reserves and
Invested Surplus
(7)X(8) $_______ $_______ $_______ $_______
10. Premium Earned
Investment Income
Exhibit 1, Line 7 $_______ $_______ $_______ $_______
11. Investment Income as
a % of Premium
Earned (9)/(10) ______% ______% ______% ______%
The director or his designee may reward an insurer actually achieving less than the maximum expense level allowable in rates after the initial three-year period by allowing a higher underwriting profit than would otherwise result from use of the instructions and exhibits set forth in this item. However, this reward may not exceed the difference between the insurer's actual expense level achieved and the maximum level allowable in rates in a given year.
5. the reasonableness of the judgment reflected in the filing;
6. a reasonable margin for underwriting profit and contingencies which may be a negative margin;
7. other relevant factors such as those which impact upon the frequency or severity of claims or upon expenses or profits, percentage of surplus relative to earned premium, as well as additional factors to be considered as a result of the enactment of the Automobile Insurance Reform Act of 1989. [See Editor's Note below.]
8.(a) In making a determination that an insurance rate is unfairly discriminatory, excessive, or unreasonable, the insurance department, in accordance with generally accepted and reasonable actuarial techniques, shall include consideration of expenses. Effective after June 30, 1989, expenses must be given effect in all private passenger automobile insurance rates by inclusion in rates of a level of expenses approximating an efficient company for the appropriate category in which each insurer qualifies. Insurers must be categorized by the marketing mechanism utilized, either as a nonagency insurer, captive agency insurer, or independent agency insurer. Nonagency insurers are those who market the automobile insurance policy primarily through the mail. Captive agency insurers are those who market the automobile insurance policy primarily through agents, compensated by salary or commission or both, but who are restricted by contract with the insurer from contracting with other insurers for marketing of automobile insurance. Independent agency insurers are those who market the automobile insurance policy primarily through agents who are not restricted by contract from marketing automobile insurance with other insurers.
(b) For purposes of this item, the maximum allowable expense level for each respective category is the weighted average for the past three years for which data is reported of the average expenses by insurer category for the top ten most efficient insurers in that category writing automobile insurance in this State. If there are not ten insurers in any given category, then the expense level is the weighted average for all the insurers in that category. The director or his designee may reward an insurer actually achieving less than the maximum expense level allowable by allowing a higher underwriting profit than would otherwise result. However, this reward may not exceed the difference between the insurer's actual expense level achieved and the maximum level allowable in rates in a given year.
(c) The director or his designee may extend the provisions of this item to other lines of property and casualty insurance, by order, after public hearing, when the determination is made that to do so is in the public interest.'
(C) In reviewing a rate filing, the department may require the insurer to provide at the insurer's expense all information necessary to evaluate the condition of the company and the reasonableness of the filing according to the criteria enumerated in this section and including statutorily-required notice provisions relative to rate filings.
(D) As a result of the enactment of the Automobile Insurance Reform Act of 1989, automobile insurance rates must be decreased on the policy anniversary date of each insured after September 30, 1989, by five percent after elimination of the appropriate amount of the recoupment charge. After the first year following the reductions, an insurer may apply to the director or his designee for a rate adjustment, based on its actual experience, and include consideration of the time value of money. In every filing following the effective date of this section for an increase in automobile insurance rates, every insurer shall include in that filing a rate report under this methodology. Every rate filing, after that time, is effective only after prior approval of the director or his designee, consistent with provisions of Chapter 23 of Title 1.
Section 38-73-470. One dollar of the yearly premium for uninsured motorist coverage must be transferred to the South Carolina Department of Public Safety, payable on a quarterly basis, to provide funds for the costs of enforcing and administering the provisions of Article 3, Chapter 10, Title 56.
Section 38-73-480. An automobile insurance contract sold on the basis of a group plan or contract pursuant to Section 38-77-130 shall have a rate not less than five percent less than the individual rate for which the insurer markets a substantially similar policy.
Section 38-73-490. To secure fair, reasonable, adequate, and nondiscriminatory rates for workers' compensation insurance the director or his designee shall approve the rate for each classification under which workers' compensation insurance is written, which rate and classification must be the same for all insurers. The director or his designee shall, in approving the rates, make use of the experience data which may be available and any other helpful information that may be obtainable.
A proceeding under this section is considered a proceeding to fix or alter rates for consumer services in relation to the duties of the Division of Consumer Advocacy.
Section 38-73-495. At any time, the director or his designee may:
(1) disapprove a previously approved rate for any classification for workers' compensation insurance upon a finding that the rate for that classification is excessive, inadequate, or unfairly discriminatory;
(2) require the division of a particular classification into separate classifications, or the joining of separate classifications into one classification, upon a finding that such action is in the public interest;
(3) direct that a particular risk be classified in a particular classification upon a finding that a risk is classified incorrectly;
(4) disapprove an experience modification rate for workers' compensation insurance upon a finding that the rate is excessive, inadequate, or unfairly discriminatory.
Section 38-73-500. For the purpose of uniformity and equality the director or his designee shall approve a system of merit rating for use in the writing of workers' compensation insurance. No system of merit rating except the one so approved may be used.
Section 38-73-510. Every workers' compensation insurer, including the parties to any mutual insurance association, must be a member of a nonpartisan rating bureau. The stock and nonstock insurers which are members of the bureau must be represented in the bureau management and on all committees of the bureau. One-half of the members of each committee must be chosen by the stock companies and one-half by the nonstock companies. In a case of a tie vote on any committee the director or his designee shall cast the deciding vote.
Section 38-73-520. Every insurer shall file with the department every manual of classifications, rules, and rates, every rating plan, and every modification of any of the foregoing which it proposes to use. Every filing shall state the proposed effective date thereof and shall indicate the character and extent of the coverage contemplated.
Section 38-73-530. The director or his designee may, upon the filing with him of an affidavit setting forth information required by him, grant permission to a licensed insurer to make a rate competing with any nonlicensed insurer in any specific risk.
Section 38-73-540. (A) Agreements may be made among insurers with respect to the equitable apportionment among them of insurance which may be afforded applicants who are in good faith entitled to, but who are unable to procure, insurance through ordinary methods, and the insurers may agree among themselves on the use of reasonable rate modifications for this insurance. These agreements and rate modifications are subject to the approval of the director or his designee. However, regardless of any provision of this section or this article to the contrary, assigned risk pools shall accept a policy of workers' compensation insurance on the basis that it provides coverage to a vendor who provides logging services to a named insured or on the basis that the policy provides coverage to an association of these vendors.
(B)(1) Notwithstanding the provisions of subsection (A), no insurer may act as a servicing carrier for any assigned risk pool for workers' compensation insurance authorized pursuant to subsection (A) unless such insurer participates in the voluntary market for workers' compensation insurance in this State.
(2) The provisions of this subsection (B) do not apply to servicing carrier contracts entered into before the effective date of this subsection (B). No servicing carrier contract in existence on the effective date of this subsection (B) may be renewed unless there is compliance with part (1) of this subsection.
Article 7
State Rating and Statistical Division
Section 38-73-710. There is established within the department a State Rating and Statistical Division which is under the administrative direction of the Director of the Department of Insurance. Nothing precludes the appointment by the director of a deputy director of any person who is now or may hereafter be an employee of the department, in addition to or substitution for his other duties or responsibilities.
Section 38-73-720. The director or his designee may, through order, fix, establish, and promulgate fair and reasonable risk classifications and territories for automobile insurance risks in accordance with the criteria and standards mentioned in Section 38-73-730 and consistent with the purposes of this chapter and Chapter 77 of this title.
The classification plan when utilized by insurers of automobile insurance must be introduced actuarially on-balance so that no increase in income level is produced by the filed classification plans. Decreases for income levels are encouraged. The classification plan must be consistent with the classification plans approved for use on a countrywide basis by the rating organization having the largest number of members or subscribers in South Carolina. In addition, the director or his designee shall not permit within the revised risk classification plan a distinction in bodily injury liability premiums charged or property damage liability premiums charged because of the type of private passenger automobile insured.
Section 38-73-730. No distinctions are permitted nor may be made between policyholders or applicants for automobile insurance as respects coverages, policy terms, rates, premium payment arrangements, claim services, or other services provided by the insurer directly or through its agents or employees except as the distinctions are relevant to and reflected in insurers' rating classifications under risk and territorial classification plans promulgated by the department. No risk classification plan may be promulgated unless the criteria used for classifying risks are objective, clear, and unequivocal and based upon factually or statistically supported data, nor unless the classifications in the rating plan are calculated to render possible the compilation of credible statistical data both for purposes of determining premiums and losses and for comparing the relative relationships between the loss or expense experience or both of the respective classes. The legislative intent is to make it possible for the director or his designee to determine the total profit or loss and expense operating results of the entire line of automobile insurance and each component thereof and of each automobile insurer transacting insurance within the line and each component and to make price comparisons between the rates and premium charges of the various insurers. It is further the policy of this chapter to render possible the evaluation by the director or his designee of the performance of the total insurance market and to enable him thereby to assist automobile insurance consumers in making appropriate consumer decisions.
Section 38-73-735. In addition to risk and territorial classification plans promulgated or approved under Section 38-73-730, the department may promulgate plans to afford credits or discounts to automobile insureds, or he may approve the credit or discount plans filed with him by insurers of automobile insurance. No automobile insurance credit or discount plan may be promulgated or approved by the director or his designee unless:
(1) the criteria for determining eligibility for credits or discounts under the plan are objective, clear, and unequivocal;
(2) the criteria are based upon factually or statistically supported data; and
(3) the credits or discounts provided under the plan will be afforded by the insurer on a nondiscriminatory basis to all insureds who are eligible therefor. If an insurance credit or discount plan is given to an insured pursuant to this section, the policy may be ceded to the Reinsurance Facility in accordance with the facility's plan of operation.
Section 38-73-740. All information, including investigative and credit reports used in determining the classification or premium rates of any person applying for automobile insurance, must be kept on file by the insurer for at least three years from the date the application was made. Upon request of the applicant, the contents of the file must be made available for inspection by the applicant and copies of the documents must be furnished the applicant if he pays the cost of reproducing the copies.
Section 38-73-750. Automobile insurers shall file with the State Rating and Statistical Division their plans or systems for allocating expenses and profit as respects the various kinds or types of automobile insurance risks and the classes of risks thereunder. However, no plan or system may be filed which is inconsistent with the classification of risks promulgated by the department. No plan or system may be filed or approved if the purpose or effect is to discriminate unfairly or unreasonably in respect to the allocation of expenses or profit between classes of risks or if the purpose or effect is to impose a burden or detriment upon the South Carolina Reinsurance Facility or to secure to the insurer using the plan or system an unfair or unreasonable competitive advantage to the detriment of the South Carolina Reinsurance Facility or other insurers. The director or his designee after due notice and hearing, shall disapprove and disallow the further use of an inconsistent, discriminatory, burdensome, or competitively unfair plan or system for the allocation of expenses and profit.
Section 38-73-760. (a) The director or his designee, through the State Rating and Statistical Division, shall fix, establish, and promulgate any uniform statistical plan that may be necessary or appropriate for the gathering and compilation of statistical data from insurers, rating organizations, or advisory organizations transacting or otherwise engaged in the automobile insurance business in the state. In promulgating any uniform statistical plan consideration may be given to the extent reasonable or practicable to the rules and forms of the plans used for rating systems in other states. Upon the promulgation of any statistical plan for automobile insurance in this State, the same must be adopted and used by every automobile insurer in this State and every automobile insurer shall constitute the State Rating and Statistical Division its statistical agent for automobile insurance in this State.
(b) The statistical plan may be promulgated so as to provide for any and all statistical and financial data necessary or appropriate to the implementation of the policy of this chapter or Chapter 77 of this title or to yield statistical data reasonably and fairly related to any of the purposes of this article, including, but not limited to, the fixing, establishing, and promulgating of risk and territorial classification plans for automobile insurance; determining the pure loss rate level indications for automobile insurance in South Carolina based upon all South Carolina loss experience and assisting in the translating of this information into usable form for insurance consumers in terms of the final rates or premium charges of each insurer of automobile insurance, determining the reasonability of loss adjustment expenses, other expenses and profit factors applied by insurers to their pure loss components in arriving at their final rates or premium charges for automobile insurance both for purposes of ensuring that the final rates or premium charges are adequate, not excessive, and not unfairly discriminatory and for ensuring that improper and undue burdens are not imposed upon the South Carolina Reinsurance Facility by way of excessive ceding commissions to ceding insurers; determining the amount, validity, and propriety of class and territorial differentials applied to the general pure loss rate levels and testing not less than annually the appropriateness of the existing differentials in the light of the most recent available loss experience data; determining the amount, validity, and propriety of surcharges and discounts referable to any uniform merit rating plan or system which may have been promulgated by the department or which may be under consideration for promulgation, the appropriateness of the surcharges and discounts in the light of the most recent available loss experience data; determining the propriety or validity of any plan for the classification of risks which may be in effect or under consideration based upon the propensities of motor vehicles or classes or types of motor vehicles or their equipment to shield occupants from death or serious injury as a result of crash or based upon the relative invulnerability of the motor vehicles or classes or types of motor vehicles to extensive damage as a result of crash or their repairability at modest expense; or obtaining data relevant to studies being made or to be made by the State Rating and Statistical Division in connection with any of the foregoing or in connection with means and methods for providing appropriate rates for insurance consumers or fostering and encouraging competition among insurers.
(c) The functions and responsibilities of the State Rating and Statistical Division acting as statistical agent for automobile insurers may not be delegated, except that the director may, as the result of competitive bidding, make an agreement with some suitable person, firm, corporation, or other organization for the gathering, compilation, recordation, or computerization of the statistical data. However, these functions are always subject to the supervision, direction, and control of the director and the examination and oversight of insurers in respect to their obligations to furnish statistical data to him remain the direct responsibility of the director or his designee and may never be delegated other than to the State Rating and Statistical Division.
(d) Any merit rating plan or system promulgated by the department pursuant to the authority contained in subsection (b) likewise extends to and includes automobile collision insurance. However, nothing contained in this subsection (d) requires that the same percentage or dollar amounts for discounts or surcharges apply to collision coverage nor does it require that surcharges already assessed in respect to the liability coverages of the policy again be assessed in respect to the collision coverage afforded by the same policy.
(e) The director or his designee shall require all insurers transacting automobile insurance business in this State to assess surcharges and grant safe driver discounts of no less than twenty percent.
(f) All policies of automobile insurance issued in South Carolina must show on the initial policy or on an attachment to the initial policy and on all premium invoices or attached to all premium invoices, in a form to be approved by the director or his designee, the amount of any surcharge (including loss of safe driver discount) that may be applicable to the policy as a result of any merit rating plan or system promulgated by the department. Also to be included, presented in a fashion that is readily understandable, is the reason for the applicable surcharge or the loss of safe driver discount. The amount of the applicable safe driver discount also must be shown.
Section 38-73-770. Every classification plan promulgated by the department must be so structured as to produce rates or premium charges which are adequate, not excessive, and not unfairly discriminatory.
Article 9
Rates and Rate Making and Rate Filing Generally
Section 38-73-910. No increase in the premium rates may be granted for automobile, workers' compensation, fire, allied lines, and homeowners insurance, nor for any other line or type of insurance with respect to which the director or his designee has, by order, made a finding that (a) legal or other compulsion upon the part of the insured to purchase the insurance interferes with competition, or (b) under prevailing circumstances there does not exist substantial competition, unless notice is given in all newspapers of general, statewide circulation at least thirty days in advance of any hearing to consider the increase in premium rates. The notice shall state the time and place of the hearing and the rates that will be considered to be increased.
However, the requirements of public notices and public hearings in this section do not apply to applications for rate increases when the applicant insurer had earned premiums in this State in the previous calendar year of less than five hundred thousand dollars for the line or type of insurance for which the rate increase is sought or, if the rate increase is sought by a rating organization, the earned premiums in this State for all members and subscribers of the organization for whom an increase is sought were less than five hundred thousand dollars for the previous calendar year for the line or type of insurance for which the rate increase is sought.
Section 38-73-915. (A) The director or his designee in reviewing rate filings may take into consideration recently passed legislation or recently rendered court decisions which will have an effect on insurance rates. The director or his designee may use such information to reduce or increase the rate level of the insurer or the rating organization.
(B) The director or his designee may order an insurer or rating organization to reduce or increase its current rate levels as a result of recently passed legislation or recently rendered court decisions. The director or his designee shall give the insurer or rating organization and the Consumer Advocate thirty days notice of his intention to order a reduction or increase in an insurer's or rating organization's rate level. The insurer or rating organization or the Consumer Advocate may request a hearing before the director or his designee under the Administrative Procedures Act to contest the proposed order. The Consumer Advocate may participate as a party in any such hearings.
Section 38-73-920. No insurer may make or issue a contract or policy except in accordance with the filings which are in effect for the insurer as provided in this chapter or in accordance with Section 38-73-1060. Notwithstanding Section 38-73-10, item (2) of Section 38-73-330, and item (4) of Section 38-73-430, filings for property and casualty rate increases may not be approved for any insurer or rating organization for any line, sub-line, or otherwise identifiable property and casualty insurance coverage for which a rate increase has previously been granted within the immediately preceding twelve months. However, if satisfactory evidence is presented to the director or his designee by an insurer or rating organization that the continued use of the previously approved rates for the line, sub-line, or otherwise identifiable property and casualty insurance coverage may result in the insolvency of an insurer, more frequent rate increases may be approved. This section does not apply to contracts or policies for inland marine risks as to which filings are not required.
Section 38-73-930. The department shall, when it is considered appropriate, issue by regulation specific mandatory guidelines and formats for filing with the department so as to promote uniformity and consistency and facilitate meaningful comparisons. Any guidelines
and formats issued shall include requirements for detailed breakdowns on the total expense component of any filing.
Section 38-73-935. No rate filing for private passenger automobile insurance may include or be based upon actual or projected loss or expense data which includes payments made on policies, wherein the amount of the settlement, judgment, or other payment by the insurer was in excess of the policy limits, exclusive of interest and costs. No rate filing for private passenger automobile insurance may include or be based upon actual or projected loss or expense data which includes payments made as a result of the insurer's tortious breach of it's duty of good faith and fair dealing.
Section 38-73-940. The information furnished in support of a filing under Sections 38-73-340 or 38-73-520 may include:
(1) the experience or judgment of the insurer or rating organization making the filing;
(2) its interpretation of any statistical data it relies upon;
(3) the experience of other insurers or rating organizations; and
(4) any other relevant factors.
A filing and any supporting information are open to public inspection after the filing becomes effective.
Section 38-73-950. When a filing is not accompanied by the information upon which the insurer supports the filing and the director or his designee does not have sufficient information to determine whether the filing meets the requirements of this chapter, he shall require the insurer to furnish the information upon which it supports the filing, and in this event the waiting period commences as of the date the information is furnished.
Section 38-73-960. The director or his designee shall review filings as soon as reasonably possible after they have been made in order to determine whether they meet the requirements of this chapter. Subject to the exceptions specified in Sections 38-73-970 and 38-73-980, each filing must be on file for a waiting period of sixty days before it becomes effective. This period may be extended by the director or his designee for an additional period not to exceed sixty days if he gives written notice within the waiting period to the insurer or rating organization which made the filing that he needs additional time for the consideration of the filing. Upon written application by the insurer or rating organization, the director or his designee may authorize a filing which he has reviewed to become effective before the expiration of the waiting period or any extension thereof. A filing meets the requirements of this chapter unless disapproved by the director or his designee within the waiting period or any extension thereof.
Section 38-73-970. Specific inland marine rates on risks specially rated by a rating organization become effective when filed and are considered to meet the requirements of this chapter until the time the director or his designee reviews the filing and so long thereafter as the filing remains in effect.
Section 38-73-980. Any special filing with respect to a surety or guaranty bond required by law, or by court or executive order, or by order or regulation of a public body, not covered by a previous filing, becomes effective when filed and is considered to meet the requirements of this chapter until the time the director or his designee reviews the filing and so long thereafter as the filing remains in effect.
Section 38-73-990. If within the waiting period or any extension thereof as provided in Section 38-73-960 the director or his designee finds that a filing or a part of a filing does not meet the requirements of this chapter, he shall send to the insurer or rating organization which made the filing written notice of disapproval of the filing or part of a filing specifying therein in what respects he finds the filing or part thereof fails to meet the requirements of this chapter and stating that the filing or the part may not become effective.
Section 38-73-1000. If, within thirty days after a specific inland marine rate on a risk specially rated by a rating organization subject to Section 38-73-970 has become effective, the director or his designee finds that the filing does not meet the requirements of this chapter, he shall send to the rating organization which made the filing written notice of disapproval of the filing specifying therein in what respects he finds that the filing fails to meet the requirements of this chapter and stating when, within a reasonable period thereafter, the filing is no longer effective. This disapproval does not affect any contract made or issued prior to the expiration of the period set forth in the notice.
Section 38-73-1010. If, within thirty days after a special surety or guaranty filing subject to Section 38-73-980 has become effective, the director or his designee finds that the filing does not meet the requirements of this chapter, he shall send to the insurer or rating organization which made the filing written notice of disapproval of the filing specifying therein in what respects he finds that the filing fails to meet the requirements of this chapter and stating when, within a reasonable period thereafter, the filing is considered no longer effective. This disapproval does not affect any contract made or issued prior to the expiration of the period set forth in the notice.
Section 38-73-1020. If at any time after the applicable review period provided for in Sections 38-73-990 to 38-73-1010 the director or his designee finds that a filing does not meet the requirements of this chapter, he shall, after a hearing held upon not less than thirty days' written notice to every insurer and rating organization which made the filing, specifying the matters to be considered at the hearing, issue an order specifying in what respects he finds that the filing fails to meet the requirements of this chapter and stating when, within a reasonable period thereafter, the filing is considered no longer effective. Copies of the order must be sent to every insurer and rating organization which made the filing. The order does not affect any contract or policy made or issued prior to the expiration of the period set forth in the order.
Section 38-73-1030. Any person or organization aggrieved with respect to any filing which is in effect may make written application to the director or his designee for a hearing thereon, except that the insurer or rating organization that made the filing may not proceed under this section. The application shall specify the grounds to be relied upon by the applicant. If, within thirty days after receipt of the application, the director or his designee finds that the application is made in good faith, that the applicant would be so aggrieved if his grounds are established, and that the grounds otherwise justify holding a hearing, he shall hold a hearing upon not less than thirty days' written notice to the applicant and to every insurer and rating organization which made the filing. If, after the hearing, the director or his designee finds that the filing does not meet the requirements of this chapter, he shall issue an order specifying in what respects he finds that the filing fails to meet the requirements of this chapter and stating when, within a reasonable period thereafter, the filing is considered no longer effective. Copies of the order must be sent to the applicant and to every insurer and rating organization which made the filing. The order does not affect any contract or policy made or issued prior to the expiration of the period set forth in the order.
Section 38-73-1040. No manual, minimum, or class rate, rating schedule, rating plan, or rating rule of or with respect to fire and allied lines or inland marine insurance, or any modification of the foregoing, which has been filed pursuant to the requirements of Section 38-73-340 may be disapproved if the rates thereby produced meet the requirements of this chapter.
Section 38-73-1050. No manual of classifications, rules, rating plans, or any modification of any of the foregoing for casualty insurance or automobile insurance which establishes standards for measuring variations in hazards or expense provisions, or both, and which has been filed pursuant to the requirements of Section 38-73-520 may be disapproved if the rates thereby produced meet the requirements of this chapter.
Section 38-73-1060. Upon the written application of the insured, stating his reasons therefor, filed with the Department and approved by the director or his designee, a rate in excess of that provided by a filing otherwise applicable may be used on any specific risk.
Section 38-73-1070. Under regulations the department promulgates, the director or his designee may, by written order, suspend or modify the requirements of filing as to any kind of insurance, subdivision, or combination thereof or as to classes of risks, the rates for which cannot practicably be filed before they are used. These orders and regulations must be made known to insurers and rating organizations affected thereby. The director or his designee may make any examination he considers advisable to ascertain whether any rates affected by the order meet the standards set forth in item (2) of Section 38-73-330 or item (4) of Section 38-73-430, as the case may be.
Section 38-73-1080. Every rating organization and every insurer which makes its own rates shall, within a reasonable time after receiving written request therefor and upon payment of such reasonable charge as it may make, furnish to any insured affected by a rate made by it or to the authorized representative of the insured all pertinent information as to the rate. Every rating organization and every insurer which makes its own rates shall provide within this State reasonable means whereby any person aggrieved by the application of its rating system may be heard, in person or by his authorized representative, on his written request to review the manner in which the rating system has been applied in connection with the insurance afforded him. If the rating organization or insurer fails to grant or reject the request within thirty days after it is made, the applicant may proceed in the same manner as if his application had been rejected. Any party affected by the action of the rating organization or the insurer on the request may, within thirty days after written notice of the action, appeal to the director or his designee, who, after a hearing held upon not less than thirty days' written notice to the appellant and to the rating organization or insurer, may affirm or reverse the action.
Section 38-73-1085. The director or his designee shall no less than annually cause to have published and make available a representative sample of the private passenger premiums being charged by at least the twenty insurance companies having the largest market share in each territory to facilitate price comparisons by insureds and prospective insureds who are seeking new coverage.
Section 38-73-1090. The director or his designee, upon his own motion, or upon written complaint, has the power in the first instance to determine whether or not any rate fixed by any individual, bureau, or insurer is unfairly discriminatory. If he concludes, after careful and diligent inquiry and a full hearing and investigation, that there is unfair discrimination, he shall order the discrimination removed and require the individual rate maker, bureau, or insurer to promulgate a rate which is not unfairly discriminatory.
Section 38-73-1100. If at any time it appears to the director or his designee that rates charged for property, casualty, surety, marine, title, or allied lines of insurance in this State are excessive or unreasonable, in that the results of the business of the insurer in this State during the five years immediately preceding the year in which the investigation is made, as indicated by the insurer's annual statements and any supplements to them, show an aggregate operating profit in excess of a reasonable amount, then the director or his designee may order a general reduction in rates which will reduce the operating profit to a reasonable amount. Any reduction ordered by the director or his designee must be applied to the class or classes of risks as the insurer or rating bureau may elect, and they may not be compelled to reduce rates on classes which have not produced a reasonable operating profit for the five-year period. In addition to ordering a general reduction in rates, the director or his designee may also order a pro rata refund of any excessive or unreasonable profits found to have been realized by the insurer, together with interest. The director or his designee shall determine the rate of interest which must be the insurer's average rate of return for the five-year period. Any refund which is ordered must be equitably apportioned among the policyholders entitled to it, and may be given either in the form of a cash refund or as a credit toward future premiums or a combination of these two methods. In determining the question of a reasonable operating profit under this section, the director or his designee as a protection to policyholders shall give proper and reasonable consideration to conflagration liabilities, both within and without this State.
Section 38-73-1105. The definition of `underinsured motor vehicle' contained in item (14) of Section 38-77-30 may not be used by an insurer unless the insurer reduces his rate for underinsured motorist coverage by an amount determined appropriate by the director or his designee and refunds any such premium that the director or his designee determines is necessary to correspond with the new definition. An insurer may not use the definition in its settlement negotiations unless the insurer has filed and the director or his designee has approved an endorsement to its contract. If an insurer uses the new definition in its negotiations with a person before having the contract endorsed it is an unfair claims practice and, in addition, is bad faith entitling the injured person to reasonable attorney fees, punitive damages, and all actual damages.
Section 38-73-1110. In order to assure fair implementation of Section 38-73-1100, the department shall promulgate a regulation concerning the calculation and refunding of excess profits. The regulation shall include consideration of:
(1) the total operating profits of each insurer in this State for the lines of insurance enumerated in Section 38-73-1100;
(2) the margin by which any insurer's operating results differ from the insurance industry's total results;
(3) the amount of excessive profits earned after the effective date of the refund provision of Section 38-73-1100;
(4) the insurers that operate in this State as affiliates of a group; and
(5) the development period used to determine if unpaid losses are fairly estimated.
Section 38-73-1120. (A) No automobile insurer or representative of any automobile insurer may wilfully include in a private passenger automobile insurance rate filing any expense or loss which was generated in whole or part by either another line of insurance or general expenses or overhead applicable to all lines, unless the insurer has allocated properly the expense or loss among all its lines of insurance. The insurer's compliance with generally accepted accounting and actuarial principles constitutes a complete defense to an action brought under this section. No insurer may adopt a different method or usage of allocating or treating expenses or losses for purposes of rate filings in South Carolina from that which it uses in other states for similar lines of insurance, unless different treatment is required by statute or regulation.
(B) The director or his designee, at least once every four years, shall make or cause to be made, for each insurer which writes more than one percent of the private passenger market in South Carolina, an examination of each insurer's books, records, and accounts to ensure that the expenses are being allocated or treated properly. In lieu of an independent examination, the director or his designee may request a sworn affidavit from the insurer's controller, accountant, or actuary that the companies' expenses are being allocated and treated properly and that private passenger automobile insureds are not being charged an inequitable or unfair share of the insurer's expenses, acquisition costs, overhead, or other expenses. The director or his designee shall survey for the companies at appropriate intervals a comparison of the acquisition cost of private passenger business in South Carolina versus other similar states in which the companies do business.
(C) An insurer violating the provisions of this section is subject to a civil penalty of not less than twenty-five thousand dollars. A person who violates the provisions of this section is guilty of a felony and, upon conviction, must be imprisoned for not more than ten years or fined not less than ten thousand dollars, or both.
Article 11
Rating Organizations
Section 38-73-1210. An insurer may satisfy its obligation to make required filings by becoming a member of, or a subscriber to, a licensed rating organization which makes filings and by authorizing the director or his designee to accept the filings on its behalf. However, notwithstanding any other provisions of this article, no member or subscriber may, within twelve months after its membership or subscribership, adopt any rate approved for use for the rating organization, if the rate is more than the rate in use by the member or subscriber prior to its membership or subscribership in the rating organization. Further, notwithstanding the provisions of Sections 38-73-1300, 38-73-1310, and 38-73-1320, no member or subscriber within twelve months after its membership or subscribership, may be granted an upward deviation from its rate in use when becoming a member or subscriber. However, if a rate increase for the rating organization is approved within twelve months after an insurer becomes a member or subscriber, the member or subscriber may increase its rates by the same percentage of increase granted the rating organization. Nothing contained in this chapter may be construed as requiring any insurer to become a member of or a subscriber to any rating organization.
Section 38-73-1220. A corporation, an unincorporated association, a partnership, or an individual, whether located within or outside this State, may make application to the director or his designee for a license as a rating organization for the kinds of insurance or subdivisions thereof or, in the case of insurance to which Article 3 of this chapter is applicable, classes of risk or parts or combinations thereof as are specified in its application and shall file therewith:
(1) A copy of its constitution, its articles of agreement or association or certificate of incorporation, and its bylaws, rules, and regulations governing the conduct of its business.
(2) A list of its members and subscribers.
(3) The name and address of a resident of this State upon whom notices or orders of the director or his designee or process affecting the rating organization may be served.
(4) A statement of its qualification as a rating organization.
Section 38-73-1230. If the director or his designee finds that the applicant is competent, trustworthy, and otherwise qualified to act as a rating organization and that its constitution, articles of agreement or association or certificate of incorporation, and its bylaws, rules, and regulations governing the conduct of its business conform to the requirements of law, he shall issue a license specifying the kinds of insurance or subdivision or class of risk or part or combination thereof for which the applicant is authorized to act as a rating organization. Every application must be granted or denied in whole or in part by the director or his designee within sixty days of the date of its filing with him. Licenses issued pursuant to this section remain in effect for an indefinite term unless sooner suspended or revoked by the director or his designee. The fee for the license is two hundred dollars owed and payable annually by March first.
Section 38-73-1240. Licenses issued pursuant to Section 38-73-1230 may be suspended or revoked by the director or his designee, after hearing upon notice, in the event the rating organization ceases to meet the requirements of this article.
Section 38-73-1250. Every rating organization shall notify the director or his designee promptly of every change in:
(1) Its constitution, its articles of agreement or association or certificate of incorporation, or its bylaws, rules, and regulations governing the conduct of its business.
(2) Its lists of members and subscribers.
(3) The name and address of the resident of this State designated by it upon whom notices or orders of the director or his designee or process affecting the rating organization may be served.
Section 38-73-1260. Subject to rules and regulations which have been approved by the department as reasonable, each rating organization shall permit any insurer, not a member, to be a subscriber to its rating services for any kind of insurance, subdivision, or class of risk or part or combination thereof for which it is authorized to act as a rating organization. If the rating organization refuses to admit an insurer as a subscriber or fails to grant or reject an insurer's application for subscribership within thirty days after it was made, the insurer may request a review by the director or his designee. Upon review the failure to act must be treated as a rejection of the application. If the director or his designee finds at a hearing, held upon at least thirty days' written notice to the rating organization, that the insurer has been refused admittance to the rating organization as a subscriber without justification, he shall order the rating organization to admit the insurer as a subscriber. If he finds that the action of the rating organization was justified, the director or his designee shall make an order affirming its action.
Each rating organization shall furnish its rating services without discrimination to its members and subscribers.
Section 38-73-1270. Notice of proposed changes in the rules and regulations referred to in Section 38-73-1260 must be given to subscribers.
The reasonableness of any rule or regulation in its application to subscribers must, at the request of any subscriber or any insurer, be reviewed by the director or his designee at a hearing held upon at least thirty days' written notice to the rating organization and to the subscriber or insurer. If the director or his designee finds that the rule or regulation is unreasonable in its application to subscribers, he shall order that the rule or regulation is not applicable to subscribers.
Section 38-73-1280. No rating organization may adopt any rule the effect of which would be to prohibit or regulate the payment of dividends, savings, or unabsorbed premium deposits allowed or returned by insurers to their policyholders, members, or subscribers.
Section 38-73-1290. Every member of or subscriber to a rating organization shall adhere to the filings made on its behalf by the organization, except as provided in Sections 38-73-1300 and 38-73-1310.
Section 38-73-1300. Any member of or subscriber to a rating organization to whom the provisions of Article 3 of this chapter are applicable may make written application to the director or his designee for permission to file a deviation from the class rates, schedules, rating plans, or rules respecting any kind of insurance or class of risk within a kind of insurance or any combination thereof. The application shall specify the basis for the modification. A copy of the application must be sent simultaneously to the rating organization.
Section 38-73-1310. Any member of or subscriber to a rating organization to whom the provisions of Article 5 of this chapter are applicable may make written application to the department for permission to file a uniform percentage decrease or increase to be applied to the premiums produced by the rating system so filed for a kind of insurance or for a class of insurance which is found by the director or his designee to be a proper rating unit for the application of such uniform percentage decrease or increase or for a subdivision of a kind of insurance (a) comprised of a group of manual classifications which is treated as a separate unit for rate-making purposes or (b) for which separate expense provisions are included in the filings of the rating organization. The application shall specify the basis for the modification and must be accompanied by the data upon which the applicant relies. A copy of the application and data must be sent simultaneously to the rating organization.
Section 38-73-1320. Upon the filing of an application under either Section 38-73-1300 or 38-73-1310 the director or his designee shall set a time and place for a hearing at which the insurer and the rating organization may be heard and shall give them not less than thirty days' written notice thereof. In the event the director or his designee is advised by the rating organization that it does not desire a hearing he may, upon the consent of the applicant, waive the hearing. In considering an application under Section 38-73-1300 for permission to file a deviation the director or his designee shall give consideration to the available statistics and the principles for rate making as provided in Section 38-73-330. The director or his designee shall issue an order permitting the deviation or modification for the insurer to be filed if he finds it to be justified. Upon issuance of the order the deviation or modification becomes effective. The director or his designee shall issue an order denying the application if he finds that the resulting premiums would be excessive, inadequate, or unfairly discriminatory or, in the case of an application filed under Section 38-73-1310, if he finds the modification requested is not justified. Each deviation permitted to be filed, which, when approved, would result in a uniform percentage decrease, remains effective until disapproved by the director or his designee. Each deviation permitted to be filed, which, when approved, would result in a uniform percentage increase, is effective for a period of one year from the date of the permission unless terminated sooner with the approval of the director or his designee.
Section 38-73-1330. Any rating organization acting for insurers to whom the provisions of Article 3 of this chapter are applicable may provide with respect to such insurers for the examination of policies, daily reports, binders, renewal certificates, endorsements, or other evidences of insurance, or the cancellation thereof, and may make reasonable rules governing their submission. The rules shall contain a provision that, in the event an insurer does not within sixty days furnish satisfactory evidence to the rating organization of the correction of any error or omission previously called to its attention by the rating organization, the rating organization shall notify the director or his designee thereof. All information so submitted for examination is confidential.
Section 38-73-1340. Any member of or subscriber to a rating organization may appeal to the Administrative Law Judge Division from the action or decision of the rating organization in approving or rejecting any proposed change in or addition to the filings of the rating organization. The Administrative Law Judge Division shall, after a hearing held before it upon not less than thirty days' written notice to the appellant and to the rating organization, issue an order approving the action or decision of the rating organization or directing it to give further consideration to the proposal, or, if the appeal is from the action or decision of the rating organization in rejecting a proposed addition to its filings, Administrative Law Judge Division may, in the event it finds that the action or decision was unreasonable, issue an order directing the rating organization to make an addition to its filings on behalf of its members and subscribers in a manner consistent with its findings, within a reasonable time after the issuance of the order.
If the appeal in the case of an insurer to whom the provisions of Article 5 of this chapter are applicable is based upon the failure of the rating organization to make a filing on behalf of the member or subscriber which is based on a system of expense provisions which differs, in accordance with the right granted in item (2) of Section 38-73-430, from the system of expense provisions included in a filing made by the rating organization, the Administrative Law Judge Division shall, if it grants the appeal, order the rating organization to make the requested filing for use by the appellant. In deciding the appeal the Administrative Law Judge Division shall apply the standards set forth in Section 38-73-430.
The actual cost to the Administrative Law Judge Division, and the Department of Insurance provided it participates in the hearing, in connection with the appeal may be charged by the Administrative Law Judge Division to the parties making the appeal in any proportion he considers proper and must be immediately paid by the respective parties.
Section 38-73-1350. Notwithstanding the provisions of Sections 38-73-1370, 38-73-1380, 38-73-1400, 38-73-1410, 38-73-1420, and 38-73-1430, after public hearing the director or his designee may prohibit cooperation among or within property/casualty rating or advisory organizations by insurers or among or within these rating or advisory organizations and insurers in rate making or in other matters within the scope of this chapter, except to the extent that these organizations may compile and disseminate only historic loss data with no mathematical trending or analytical methodologies, upon a finding by the director or his designee that the anti-competitive effects of this cooperation outweigh practical constraints of prohibitions. All property/casualty filings are subject to prior approval by the director or his designee. The provisions of Title 1, Chapter 23 (Administrative Procedures Act) apply to all property/casualty rate filings.
Section 38-73-1360. Any rating organization serving insurers to which the provisions of Article 3 of this chapter apply may subscribe for or purchase actuarial, technical, or other services and these services must be available to all insurers who are members and subscribers of the organization without discrimination.
Section 38-73-1370. After June 30, 1989, no rating organization may file a rate increase with the department for any previously approved final rate or premium charge for any private passenger automobile insurance coverage. A rating organization may file the pure loss component of the rate or premium charge for any private passenger automobile insurance coverage, by class and territory, for the approval of the director or his designee. After a public hearing, the director or his designee may approve the pure loss component of the rate or premium charge for use by the members or subscribers of the rating organization. No member or subscriber may use the approved pure loss component of the rate or premium charge unless and until the expense component of the rate or premium charge has also been filed with the department and approved by the director or his designee pursuant to Section 38-73-1380.
Section 38-73-1380. After June 30, 1989, no member or subscriber of a rating organization may utilize a rate or premium charge for any private passenger automobile insurance coverage unless and until the final rate or premium charge has been filed with the Division and approved by the director or his designee. After the effective date of this section, the final rate or premium charge is the pure loss component filed and approved by a rating organization on behalf of its members or subscribers added to the expense component of the rate or premium charge, filed with the department and approved by the director or his designee, by each member or subscriber of a rating organization independently. No expense component filed by a member or subscriber of a rating organization may be approved by the director or his designee unless it has been the subject of a public hearing, if that member's or subscriber's total written private passenger automobile insurance premium during the previous calendar year equaled or exceeded one percent of the total written private passenger automobile insurance premium in this State during the previous calendar year. For other lines of insurance the requirements of this section are not activated unless the members' or subscribers' total written premium during the previous calendar year equaled or exceeded three percent of the total written insurance premium for that specific line of insurance in this State during the previous calendar year.
Section 38-73-1400. (1) After June 30, 1989, the `pure loss component' of the final rate or premium charge for private passenger automobile insurance is that portion of the final rate or premium charge applicable to calendar/accident year incurred losses (the sum of paid losses plus loss reserves including incurred but not reported loss reserves) and loss adjustment expense (those expenses directly related to the payment of claims) in this State, trended to include both the past and prospective loss experience. If the insurer writes one percent or more of the written premium for automobile insurance during the previous calendar year, that insurer must file its own trending methodology as independently derived.
(2) The `expense component' of the final rate or premium charge for private passenger automobile insurance is that portion of the final rate or premium charge applicable to production costs (including commissions and other acquisition expenses), underwriting costs, administrative costs (including the actual costs of taxes, licenses and fees), and profit margin in this State.
(3) The `final rate or premium charge' is the approved pure loss component added to the approved expense component. In the determination of whether the pure loss component should be approved and in the determination of whether the expense component should be approved, neither may be inadequate, excessive, nor unfairly discriminatory and the director or his designee shall take into account investment income from unearned premium and loss reserves, surplus and realized capital gains.
Section 38-73-1410. After June 30, 1989, upon the effective date of this section, nothing herein should be construed to require a rating organization or its members or subscribers to immediately refile final rates or premium charges previously approved by the director or his designee for private passenger automobile insurance coverages. Members or subscribers of a rating organization are authorized to continue to use automobile insurance rates or premium charges, approved before the effective date of this section, or decreases from those rates or premium charges filed by ]the rating organization and, subsequently, approved after the effective date of this section.
Section 38-73-1420. After June 30, 1989, the Board of Governors of the South Carolina Reinsurance Facility shall file an expense component for private passenger automobile insurance rate or premium charges after the rating organization with the largest number of members or subscribers has filed a pure loss component for private passenger automobile insurance with the director or his designee. Upon the approval of such component by the director or his designee, those automobile insurers designated pursuant to Section 38-77-590(A), for risks written by them through producers designated pursuant to that same section, shall utilize these final rate or premium charges. Automobile insurers designated pursuant to Section 38-77-590(A) are not required to use those same final rates or premium charges for risks written through their agents not appointed pursuant to Section 38-77-590.
Section 38-73-1425. The final rate or premium charge for a private passenger automobile insurance risk ceded to the facility which does not qualify for the safe driver discount in Section 38-73-760(e) is the final rate or premium charge required by Section 38-73-1420 or the final rate or premium charge approved for use by the insurer, whichever is greater.
Section 38-73-1430. After June 30, 1989, the director or his designee may extend the provisions of Sections 38-73-1370, 38-73-1380, 38-73-1400, and 38-73-1410 to other lines of property and casualty insurance, by order, after public hearing, when the determination is made that to do so is in the public interest.
Article 13
Advisory Organizations
Section 38-73-1510. Every group, association, or other organization of insurers, whether located within or outside this State, which assists insurers which make their own filings or rating organizations in rate making by the collection and furnishing of loss or expense statistics or by the submission of recommendations, but which does not make filings under this chapter, is known as an `advisory organization'.
Section 38-73-1520. Every advisory organization shall file with the department:
(1) A copy of its constitution, its articles of agreement or association or certificate of incorporation, and its bylaws, rules, and regulations governing its activities.
(2) A list of its members.
(3) The name and address of a resident of this State upon whom notices or orders of the director or his designee or process issued at his discretion may be served.
(4) An agreement that the director or his designee may examine the advisory organization in accordance with the provisions of Section 38-73-90.
Section 38-73-1530. If, after a hearing, the director or his designee finds that the furnishing of information or assistance involves any act or practice which is unfair, unreasonable, or otherwise inconsistent with the provisions of this chapter, he may issue a written order specifying in what respects the act or practice is unfair, unreasonable, or otherwise inconsistent with the provisions of this chapter and requiring the discontinuance of the act or practice.
Section 38-73-1540. No insurer which makes its own filings nor any rating organization may support its filings by statistics or adopt rate-making recommendations furnished to it by an advisory organization which has not complied with this article or with an order of the director or his designee involving statistics or recommendations issued under Section 38-73-1530. If the director or his designee finds an insurer or rating organization to be in violation of this section, he may issue an order requiring the discontinuance of the violation.
Article 15
Joint Underwriting or Joint Reinsurance
Section 38-73-1710. Every group, association, or other organization of insurers which engages in joint underwriting or joint reinsurance is subject to regulation with respect thereto as herein provided, subject, however, with respect to joint underwriting, to all other provisions of this chapter, and, with respect to joint reinsurance, to Sections 38-73-90 to 38-73-130.
Section 38-73-1720. If, after a hearing, the director or his designee finds that any activity or practice of any such group, association, or other organization is unfair or unreasonable or otherwise inconsistent with the provisions of this chapter, he may issue a written order specifying in what respects the activity or practice is unfair or unreasonable or otherwise inconsistent with the provisions of this chapter and requiring the discontinuance of the activity or practice."
Name changed
SECTION 784. Section 38-73-455(A)(2) of the 1976 Code is amended to read:
"(2) has had convictions for driving violations on three or more separate occasions within the thirty-six months immediately preceding the effective date of coverage as reflected by the motor vehicle record of each insured driver as maintained by the Motor Vehicle Division of the Department of Revenue and Taxation; or"
Name changed
SECTION 785. Section 38-73-455(A)(4) of the 1976 Code is amended to read:
"(4) has had one `chargeable' accident and two convictions for driving violations, all occurring on separate occasions, within the thirty-six months immediately preceding the effective date of coverage as reflected by the motor vehicle record of each insured driver as maintained by the Motor Vehicle Division of the South Carolina Department of Revenue and Taxation; or"
Name changed
SECTION 786. Section 38-73-456 of the 1976 Code is amended to read:
"Section 38-73-456. An insurer may not increase premiums on or add surcharges to automobile insurance of a person charged with a driving violation unless he is convicted of the violation. The Motor Vehicle Division of the Department of Revenue and Taxation may not report an alleged violation to insurers until the person charged is convicted and when reporting must also report the conviction date."
Name changed
SECTION 787. Section 38-73-470 of the 1976 Code is amended to read:
"Section 38-73-470. One dollar of the yearly premium for uninsured motorist coverage must be transferred to the South Carolina Department of Public Safety, payable on a quarterly basis, to provide funds for the costs of enforcing and administering the provisions of Article 3, Chapter 10, Title 56."
Name changed, defined; powers of director
SECTION 788. Section 38-74-10(13) of the 1976 Code is amended to read:
"(13) `Director' means the person who is appointed by the Governor upon the advice and consent of the Senate and who is responsible for the operation and management of the Department of Insurance, including all of its divisions. The director may appoint or designate the person or persons who shall serve at the pleasure of the director to carry out the objectives or duties of the department as provided by law. Furthermore, the director may bestow upon his designee or deputy director any duty or function required of him by law in managing or supervising the Insurance Department."
Name changed
SECTION 789. Section 38-74-20 of the 1976 Code is amended to read:
"Section 38-74-20. (A) There is created a nonprofit entity to be known as the South Carolina Health Insurance Pool. All insurers authorized to issue or provide health insurance in this State on or after the effective date of this chapter are members of the pool.
(B) The director or his designee shall give notice to all insurers of the time and place for the initial organizational meetings. The pool members shall select five directors to sit on the board. The Governor shall appoint three directors to the board. One must be appointed to represent consumers and two must be appointed to represent businesses, other than the insurance industry. In the event of a tie vote of the board on any matter, the issue must be presented to the director for his approval or disapproval. The selection of the administering insurer is subject to approval by the director. The board shall include, to the extent possible, at least two domestic insurance companies selling health insurance in South Carolina, including the domestic company selling the largest amount of health insurance.
(C) If, within sixty days of the organizational meeting the board is not selected, the director shall appoint the initial board.
(D) The board shall submit to the director or his designee a plan of operation for the pool and any amendments necessary or suitable to assure the fair, reasonable, and equitable administration of the pool. The director or his designee shall approve the plan of operation provided it is determined to be suitable to assure the fair, reasonable, and equitable administration of the pool and provides for the sharing of pool gains or losses on an equitable basis. The plan of operation is effective upon approval in writing by the director or his designee consistent with the date on which the coverage under this chapter must be made available. If the board fails to submit a suitable plan of operation within one hundred twenty days after the appointment of the board of directors, or at any time thereafter fails to submit suitable amendments to the plan, the department, after notice and hearing, shall promulgate reasonable regulations necessary to effectuate the provisions of this chapter. The regulations shall continue in force until modified by the department or superseded by a plan submitted by the board and approved by the director or his designee.
(E) In its plan the board shall:
(1) establish procedures for the handling and accounting of assets and monies of the pool;
(2) select an administering insurer in accordance with Section 38-74-40 and establish procedures for filling vacancies on the board of directors;
(3) establish procedures for the collection of assessments from all members to provide for claims incurred or estimated to be incurred under the plan and for administrative expenses incurred or estimated to be incurred during the period for which the assessment is made. The level of payments must be established by the board, pursuant to Section 38-74-50. Assessment occurs at the end of each fiscal year. The board may provide also for interim assessments against members of the pool if necessary to assure the financial capability of the pool. Assessments are due and payable within thirty days of receipt of the assessment notice;
(4) develop and implement a program to publicize the existence of the plan, the eligibility requirements, and procedures for enrollment, and to maintain public awareness of the plan.
(F) The pool has the general powers granted under the laws of this State to insurance companies licensed to transact accident and health insurance including, but not limited to, the specific authority to:
(1) enter into contracts necessary to carry out the provisions of this act, including the authority, with the approval of the director or his designee, to enter into contracts with similar pools of other states for the joint performance of common administrative functions, or with persons or other organizations for the performance of administrative functions;
(2) sue or be sued, including taking legal actions necessary or proper for recovery of assessments for, on behalf of, or against pool members;
(3) take legal action as necessary to avoid the payment of improper claims against the pool or the coverage provided by or through the pool;
(4) establish appropriate rates, rate schedules, rate adjustments, expense allowances, claim reserve formulas, and any other actuarial function appropriate to the operation of the pool;
(5) assess members of the pool in accordance with the provisions of this act;
(6) subject to the approval of the director or his designee, issue policies of insurance in accordance with the requirements of this chapter;
(7) appoint from among members appropriate legal, actuarial, and other committees as necessary to provide technical assistance in the operation of the pool, policy, and other contract design, and any other function within the authority of the pool;
(8) borrow money to effect the purposes of this act. Notes or other evidence of indebtedness of the pool not in default are legal investments for domestic insurers and may be carried as admitted assets. The pool may not borrow money unless there is a net loss of the operation of the pool which exhausts the assessments of the pool for that year. No money may be borrowed in excess of the loss after assessments have been exhausted. No more than three million dollars may be borrowed in any one year, and the total amount borrowed at any one time may not exceed five million dollars. The members of the pool are responsible for any debt which is incurred by the pool;
(9) cause to be audited on an independent basis every two years the finances of the pool and submit the report of audit to the department who shall submit it to the Chairman of the Senate Finance Committee and the Chairman of the House Ways and Means Committee with recommendations on the operations of the pool.
(G) In addition to its general powers, the board may take measures to contain insurance costs subject to the approval of the director or his designee, including, but not limited to:
(1) provide for and employ cost containment measures and requirements, including, but not limited to, preadmission screening, second surgical opinion, concurrent utilization review, and individual case management for the purpose of making the benefit plan more cost effective;
(2) design, utilize, contract, or otherwise arrange for delivery of cost effective health care services, including establishing or contracting with preferred provider organizations, health maintenance organizations, or other limited network provider arrangements."
Name changed
SECTION 790. Section 38-74-60(C)(2) of the 1976 Code is amended to read:
"(2) The board shall determine the standard risk rate by taking into account the individual standard rate charged by the five largest insurers offering individual coverages in the State comparable to the pool coverage. If five insurers do not offer comparable coverage, the standard risk rate must be established using reasonable actuarial techniques and must reflect anticipated experience and expenses for coverage. Rates initially established for pool coverage are two hundred percent of rates established as applicable for individual standard risks. Rates subsequently established must provide fully for the expected costs of claims and expenses of operation taking into account investment income and any other cost factors, but may not exceed three hundred percent of rates established as applicable for individual standard risks subject to the limitations described in this section. If the total tax credit provided in Section 38-74-80 exceeds five million dollars in any one year for all members of the pool, the board shall establish a rate for all policies which assures that the tax credit does not exceed five million dollars in the following year of operation. All rates and rate schedules must be submitted to the director or his designee for approval."
Name changed; etc.
SECTION 791. Section 38-74-70 of the 1976 Code is amended to read:
"Section 38-74-70. (A) Neither the participation in the pool as members, the establishment of rates, forms, or procedures nor any other joint or collective action required by this chapter may be the basis of any legal action, criminal or civil liability, or penalty against the pool or any of its members.
(B) There is no liability on the part of, and no cause of action of any nature may arise against, a member insurer or its agents or employees, the pool's agents, employees, or board of directors, or the director, his designees or his representatives, for any act or omission in the performance of their powers and duties under this chapter. This section does not relieve the pool of any of its liability."
Name changed
SECTION 792. Section 38-75-230 of the 1976 Code is amended to read:
"Section 38-75-230. Any contract to purchase a mobile home shall on its face:
(1) clearly include the provisions of Section 38-75-210, and
(2) clearly inform the purchaser that it is a violation of the law of this State for the seller of a mobile home or for any person lending money upon the security thereof to require or to attempt to require that hazard insurance be purchased from any particular insurer or agent and shall include the address of the office of the department of the Insurance with instructions to report any violation or attempted violation to his office."
Name changed; notice, hearing before Administrative Law Judge Division; etc.
SECTION 793. Article 5, Chapter 75, Title 38 of the 1976 Code is amended to read:
"Article 5
Wind and Hail Insurance
Section 38-75-310. In this article, unless the context otherwise requires:
(1) `Essential property insurance' means insurance against direct loss to property as defined and limited in the wind and hail insurance policy and forms approved by the director or his designee.
(2) `Association' means the South Carolina Wind and Hail Underwriting Association established pursuant to the provisions of this article.
(3) `Plan of operation' means the plan of operation of the association approved or promulgated by the department pursuant to the provisions of this article.
(4) `Insurable property' means immovable property at fixed locations in coastal areas of the State as that term is hereinafter defined, or tangible personal property located therein, which property is determined by the association to be in an insurable condition as determined by reasonable underwriting standards, but not to include farm or manufacturing property, or motor vehicles which are eligible to be licensed for highway use. Any structure commenced on or after September 15, 1971, not built in substantial compliance with the Southern Standard Building Code, including the design-wind requirements therein, is not an insurable risk under the terms of this article. Any structure commenced on or after September 15, 1971, shall comply with any construction and zoning requirements affecting the structure, promulgated or adopted pursuant to the requirements of the Federal Flood Insurance Program.
(5) `Coastal area' means:
(a) all areas in Beaufort County and Colleton County which are east of the west bank of the intracoastal waterway;
(b) the following areas in Georgetown County: Cedar Island, DeBordieu Beach, Litchfield Beach, South Island, Pawley's Island, Retreat Beach, North Island, Magnolia Beach, and Garden City;
(c) all areas in Horry County east of a line paralleling and lying one hundred fifty feet east of U. S. Highway No. 17 (Kings Highway);
(d) the following areas in Charleston County: Eddingsville Beach, Kiawah Island, Botany Bay Island, Folly Island, Seabrook Island, Morris Island, and all areas north of the city of Charleston which are east of the west bank of the intracoastal waterway.
(6) `Net direct premiums' means gross direct premiums excluding reinsurance assumed and ceded written on property other than farm or manufacturing in this State for fire and extended coverage insurance, including the fire and extended coverage components of homeowners policy and commercial multiple peril package policies, less return premiums upon canceled contracts, dividends paid or credited to policyholders, or the unused or unabsorbed portion of premium deposits.
Section 38-75-320. The purpose of this article is to provide a method whereby wind and hail insurance may be obtained more easily and equitably in the coastal areas of this State.
Section 38-75-330. There is created the South Carolina Wind and Hail Underwriting Association, an unincorporated association whose responsibilities, liability, and regulations are governed and defined by this article, consisting of all private insurers authorized to write and engage in writing property insurance within this State on a direct and statewide basis, but excluding insurers whose writings are limited to property wholly owned by parent, subsidiary, or allied organizations, or insurers whose writings are limited to property wholly owned by religious organizations, provided, however, as a condition of exemption from membership such insurers providing property insurance for insurable property in the coastal area as defined by this article shall also provide essential property insurance for such risks. Every such insurer must be a member of the association and must remain a member of the association so long as the association is in existence as a condition of its authority to continue to transact the business of insurance in this State.
Section 38-75-340. The association must operate pursuant to a plan of operation which shall set forth the number, qualifications, terms of office, and manner of election of the members of the board of directors and shall provide for the efficient, economical, fair, and nondiscriminatory administration of the association and for the prompt and efficient provision of essential property insurance in the coastal areas of the State so as to promote orderly community development in those areas and to provide means for the adequate maintenance and improvement of the property in such areas. The plan may include the establishment of necessary facilities, management of the association, plan for the assessment of members to defray losses and expenses, reasonable underwriting standards, commissions to be paid to agents or brokers, procedures for the acceptance and cession of reinsurance, procedures for determining the amounts of insurance to be provided to specific risks, time limits and procedures for processing applications for insurance, and for any other provisions considered necessary by the director or his designee to carry out the purposes of this article.
Insurance effected pursuant to this article shall have limits of liability provided in the plan of operation. The director or his designee shall approve the limits. Excess insurance is not permitted until the maximum available under the plan has been purchased. Thereafter, excess insurance may be purchased and must be included for the purpose of meeting any coinsurance requirement.
The directors of the association may, subject to the approval of the director or his designee, amend the plan of operation at any time. The director or his designee shall review the plan of operation, including the rate structure and loss experience, not less than once in each calendar year. After review of the plan the director or his designee may amend the plan upon approval of the directors of the association.
Section 38-75-350. (a) Any person having an insurable interest in insurable property is entitled to apply to the association for coverage and for an inspection of the property. The application must be made on behalf of the applicant by a licensed broker or agent authorized by him. Applications must be submitted on forms prescribed by the association and approved by the director or his designee. The application shall contain a statement as to whether or not there are any unpaid premiums due from the applicant for fire insurance on the property. The term `insurable interest' as used in this section includes any lawful and substantial economic interest in the safety or preservation of property from loss, destruction, or pecuniary damage.
(b) If the association determines that the property is insurable and that there is no unpaid premium due from the applicant for prior insurance on the property, the association upon receipt of the premium, or such portion thereof as is prescribed in the plan of operation, shall cause to be issued a policy of essential property insurance for a term of at least one year.
(c) If the association, for any reason, denies an application and refuses to cause to be issued an insurance policy on insurable property to any applicant or takes no action on an application within the time prescribed in the plan of operation, the applicant may appeal to the director or his designee and the director or a member of his staff designated by him, after reviewing the facts, may direct the association to issue or cause to be issued an insurance policy to the applicant. In carrying out its duties pursuant to this section, the director or his designee may request, and the association shall provide, any information the director or his designee considers necessary to a determination concerning the reasons for the denial or delay of the application.
Section 38-75-360. The association, pursuant to the provisions of this article and the plan of operation, and with respect to essential property insurance on insurable property, has the power on behalf of its members:
(a) To cause to be issued policies of insurance to applicants.
(b) To assume reinsurance from its members.
(c) To cede reinsurance to its members and to purchase reinsurance in behalf of its members.
Section 38-75-370. All members of the association shall participate in its writings, expenses, profits, and losses in the proportion that the net direct premium of the member written in this State during the preceding calendar year bears to the aggregate net direct premiums written in this State by all members of the association, as certified to the association by the department after review of annual statements, other reports, and other statistics which the department considers necessary to provide the information required and which the department is authorized to obtain from a member of the association. After certification by the department, the association may rely on the member company's annual statement in determining the company's participation in profits and losses for each year.
Each member's participation in the association must be determined annually in the same manner as the initial determination. An insurer authorized to write and engage in writing insurance, the writing of which requires the insurer to be a member of the association pursuant to Section 38-75-330, becomes a member of the association on January first immediately following the authorization. The determination of the insurer's participation in the association must be made as of the date of the membership in the same manner as for all other members of the association. Member insurers shall receive credit annually for essential property insurance voluntarily written in the coastal area and their participation in the writings of the association must be reduced accordingly. The board of directors shall authorize the method of determining the credit. In order to receive credit for essential property voluntarily written in the coastal area, each member company shall submit its requests by March thirty-first of the year for which credit is sought.
The assessment of a member insurer after hearing may be ordered deferred in whole or in part upon application by the insurer if, in the opinion of the director or his designee, payment of the assessment would render the insurer insolvent or in danger of insolvency or would otherwise leave the insurer in a condition so that further transaction of the insurer's business would be hazardous to its policyholders, creditors, members, subscribers, stockholders, or the public. If payment of an assessment against a member insurer is deferred by order of the director or his designee in whole or in part, the amount by which the assessment is deferred must be assessed against other member insurers in the same manner as provided in this section. In its order of deferral, or in necessary subsequent orders, the director or his designee shall prescribe a plan by which the assessment so deferred must be repaid to the association by the impaired insurer with interest at the six-month treasury bill rate adjusted semiannually. Profits, dividends, or other funds of the association to which the insurer is otherwise entitled must not be distributed to the impaired insurer but must be applied toward repayment of an assessment until the obligation has been satisfied. The association shall distribute the repayments, including interest, to the other member insurers on the basis at which assessments were made.
Section 38-75-375. (A) If a member company perceives an assessment or interest levied by the association to be unjust or illegal, the company shall pay the assessment or interest under protest in writing within thirty days of the assessment or interest charge. Upon receiving this payment, the association shall pay the money collected into the association account and designate the money as having been paid under protest.
(B) A member company paying an assessment or interest under protest shall appeal to the association within thirty days after making the payment. If it is determined in that appeal that the assessment or interest was collected unjustly or illegally, the association shall refund the assessment or interest to the payor.
(C) If a member company fails to pay an assessment or interest within thirty days of the assessment or interest charge by the association, the company is subject to disciplinary procedures pursuant to Section 38-5-120 or 38-5-130.
Section 38-75-380. There may be no liability on the part of and no cause of action of any nature may arise against the department or any of its staff or the association or its agents, employees, or any participating insurer for any inspections made hereunder or any statements made in good faith by them in any reports or communications concerning risk submitted to the association or at any administrative hearings conducted in connection therewith under the provisions of this article.
Section 38-75-385. There is no liability on the part of, and no cause of action of any nature may arise against, any member insurer, the association's agents or employees, the board of directors, or the director, his designees, or his representatives for any act or omission in the performance of their powers and duties under this article. This section does not relieve the association of any of its liability.
Section 38-75-390. Any member of the association who is designated to receive and write essential property insurance from or through the association shall one hundred percent cede to the association that essential property insurance.
Section 38-75-400. The rates, rating plans, and rating rules applicable to the insurance written by the association are those approved for use of the association by the director or his designee. Surcharges may be used as approved by the director or his designee. Rates may include rules for classification of risks insured hereunder and rate modifications thereof.
Section 38-75-410. (A) A person insured pursuant to this article or his representative or a member company who is aggrieved by an act, ruling, or decision of the association:
(1) regarding rates, classification of risks, assessments, voluntary credits, cancellation or termination of policies, or underwriting shall appeal to the director or his designee within sixty days after the act, ruling, or decision;
(2) other than those specified in item (1), may appeal to the director or his designee within thirty days after the act, ruling, or decision.
(B) Hearings held by the director or his designee pursuant to this section must be in accordance with the procedures set forth in Chapter 3, Title 38 and Article 3, Chapter 23, Title 1, `Administrative Procedures'.
Section 38-75-420. All reports of inspection performed by or on behalf of the association must be made available to the members of the association, applicants, agent or broker, and the department.
Section 38-75-430. The association shall file with the department by March thirty-first of each year a statement which summarizes the transactions, conditions, operations, and affairs of the association during the preceding fiscal year ending October thirty-first. The statement shall contain any matters and information prescribed by the department and must be in the form required by it. The department may at any time require the association to furnish to it any additional information with respect to its transactions or any other matter which it considers material to assist it in evaluating the operation and experience of the association.
Section 38-75-440. The department may make an examination into the affairs of the association and in undertaking the examination may hold a public hearing. The expense of the examination must be borne and paid by the association.
Section 38-75-450. The department has authority to make reasonable regulations, not inconsistent with law, to enforce, carry out, and make effective the provisions of this article after notice and hearing before the Administrative Law Judge Division.
Section 38-75-460. The director or his designee may, by written order, temporarily expand the area in which the association must provide essential property insurance. The area may not be expanded further inland than east of the west bank of the intracoastal waterway and may not be expanded to cover the area for more than twelve months. If the director or his designee issues an order that expands the area in which the association provides essential property insurance, he shall notify the General Assembly of that order and he shall recommend, through the Director of the Department of Insurance, to the General Assembly any appropriate statutory changes in the law concerning the definition of `coastal area' which he believes needs to be enacted."
Name changed
SECTION 794. Section 38-75-730(a)(5) of the 1976 Code is amended to read:
"(5) loss of the insurer's reinsurance covering all or a significant portion of the particular policy insured, or where continuation of the policy would imperil the insurer's solvency or place that insurer in violation of the insurance laws of this State. Prior to cancellation for reasons permitted in this item (5), the insurer shall notify the director or his designee, in writing, at least sixty days prior to such cancellation and the director or his designee shall, within thirty days of such notification, approve or disapprove such action."
Name changed
SECTION 795. Section 38-75-780 of the 1976 Code is amended to read:
"Section 38-75-780. There is no liability on the part of and no cause of action of any nature may arise against the director or his designees, any insurer, or the authorized representatives, agents, and employees of either or any firm, person, or corporation furnishing to the insurer information as to reasons for cancellation or refusal to write or renew, for any statement made by any of them in complying with this article, or for the providing of information pertaining thereto, unless the person asserting the cause of action establishes that the person against whom the cause of action is asserted was motivated by express malice or gross negligence."
Name changed
SECTION 796. Section 38-75-930 of the 1976 Code is amended to read:
"Section 38-75-930. (A) If a domestic title insurer becomes insolvent, is in the process of liquidation or dissolution, or is in the possession of the director or his designee:
(1) the amount of the assets of the title insurance company equal to the reinsurance reserve then remaining may be used with the written approval of the director or his designee to pay for reinsurance of the liability of each title insurer upon all outstanding title insurance policies or reinsurance agreements to the extent for which claims for losses by the holders are not then pending. The balance of the assets, if any, equal to the reinsurance reserve then may be transferred to the general assets of the title insurer;
(2) the assets net of the reinsurance reserve must be available to pay claims for losses sustained by holders of title insurance policies then pending or arising up to the time reinsurance is effected. If claims for losses exceed other assets of the title insurer, the claims, when established, must be paid pro rata out of the surplus assets attributable to the reinsurance reserve, to the extent of the surplus, if any.
(B) If reinsurance is not obtained, assets equal to the reinsurance reserve and assets constituting minimum capital, or so much as remains after outstanding claims have been paid, constitute a trust fund to be held and invested by the director or his designee for twenty years, out of which claims of policyholders must be paid as they arise. The balance, if any, of the trust fund shall revert to the general assets of the title insurer at the expiration of twenty years."
Name changed
SECTION 797. Section 38-75-940 of the 1976 Code is amended to read:
"Section 38-75-940. (A) All title insurers licensed in this State shall establish and maintain reserves against unpaid losses and loss expenses.
(B) Upon receiving written notice from or on behalf of the insured of a title defect in or lien or adverse claim against the title of the insured that may result in a loss or cause expense to be incurred in the proper disposition of the claim, the title insurer shall determine the amount to be added to the reserve which shall reflect a careful estimate of the loss or loss expense likely to result by reason of the claim.
(C) Reserves required under this section may be revised from time to time and must be redetermined at least once each year.
(D) If the director or his designee determines that the loss and loss expense reserves of the title insurer are inadequate, he may require the title insurer to increase the amount of reserves to an amount he considers reasonable."
Name changed
SECTION 798. Section 38-75-950 of the 1976 Code is amended to read:
"Section 38-75-950. (A) A title insurer may obtain reinsurance for all or any part of its liability under one or more of its title insurance policies or reinsurance agreements and also may reinsure title insurance policies issued by other title insurers on risks located in this State or elsewhere. Reinsurance on policies issued on properties located in this State must be obtained from title insurers licensed to transact title insurance business in this State.
(B) Upon application by a title insurer, the director or his designee may permit the insurer to obtain reinsurance from a title insurer not licensed in this State upon the following conditions:
(1) the title insurer is unable to obtain reinsurance from a title insurer licensed in this State; and
(2) the unlicensed title insurer meets the requirements of approved reinsurers in Section 38-5-60."
Name changed
SECTION 799. Section 38-75-960 of the 1976 Code is amended to read:
"Section 38-75-960. (A) No title insurer or title insurance agent may accept an order for, issue a title insurance policy to, or provide services to an applicant if it knows or has reason to believe that the applicant was referred to it by any producer of title business or by any associate of the producer where the producer, the associate, or both, have a financial interest in the title insurer or title agent to which business is referred unless the producer has disclosed to the buyer, seller, or lender the financial interest of the producer of title business or associate referring the title business. The disclosure must be made in writing on forms prescribed by the director or his designee. The title insurer or agent shall maintain the disclosure forms for a period of three years.
(B) Each title insurer and title agent shall file with the department, on forms prescribed by the director or his designee, reports setting forth the names and addresses of those persons, if any, who have had a financial interest in the title insurer or title agent during the calendar year who are known or reasonably believed by the title insurer or title agent to be producers of title business or associates of producers.
(1) Each title insurer shall file the report required under this subsection with its application for a license and at any time there is a change in the information provided in the last report.
(2) Each title agent shall file the report required under this subsection with its application for license and at any time there is a change in the information provided in its last report.
(3) Each title insurer or title agent licensed on the effective date of this act, shall file the report required under this subsection within ninety days after the effective date of this act."
Name changed
SECTION 800. Section 38-75-980 of the 1976 Code is amended to read:
"Section 38-75-980. (A) A title insurer shall file with the director or his designee the premium rate schedules it proposes to use in this State. If the director or his designee finds in his review of a filing that it does not violate Section 38-75-970, he shall approve the schedule within sixty days of filing. Before the approval, the director or his designee may conduct public hearings with respect to the filing. Filings that the director or his designee has failed to approve or disapprove within sixty days of filing is considered approved. Upon notice to the title insurer, the period for review of the rate filing may be extended for an additional sixty days.
(B) If after the approval of filing the director or his designee believes that the filing does not meet the requirements of this section or is otherwise contrary to law, or if any party having an interest in the filing makes a written complaint to the director or his designee setting forth specific and reasonable grounds for the complaint, or if any insurer, upon notice of disapproval by the director or his designee of a filing pursuant to this section, should so request, the director or his designee shall hold a hearing within thirty days and give written notice of the hearing to all parties in interest. The director or his designee may confirm, modify, change, or rescind any previous action if warranted by the facts shown at the hearing."
Name changed
SECTION 801. Section 38-77-10(1) of the 1976 Code is amended to read:
"(1) To provide that every automobile insurance risk which is insurable on the basis of the criteria established in this chapter is entitled to automobile insurance from the automobile insurer of the applicant's choice on the basis of the same rates, policy forms, claims service, and other services provided by the insurer to all other applicants or insureds falling within the classification of risk and territory under the applicable risk and territorial classification plan promulgated by the department so long as all these applicants or insureds have satisfied the same objective standards as established in Sections 38-77-280 and 38-73-455;"
Name changed
SECTION 802. Section 38-77-30(12) of the 1976 Code is amended to read:
"(12) `Specialized insurer' means an insurer which specializes in certain types of business such as, but without limitation on the generality, commercial automobile business, and which may be relieved, with the approval of the director or his designee, of the obligation to write types of business inconsistent with this specialty, such as private passenger automobile business. However, no insurer may be approved as a specialized insurer or continue to be so approved unless it accepts all insurable risks falling within the types of business to which it confines its writings without distinctions among applicants or policyholders as to policy forms, terms, rates or services other than as the distinctions are reflected in the approved rating plan for the classification of risks. No insurer may be approved as a specialized insurer because it specializes in or purports to specialize in select or preferred risks. A specialized insurer may not cede risks to the Reinsurance Facility and thus does not recoup losses of the facility. Specialized insurers may be excused from using the merit rating plan and the uniform classification and territorial plans upon approval by the director or his designee."
Name changed
SECTION 803. Section 38-77-110(A) of the 1976 Code is amended to read:
"(A) Automobile insurers other than insurers designated and approved as specialized insurers by the director or his designee may not refuse to write or renew automobile insurance policies for individual private passenger automobiles or small commercial risks. These policies may not be canceled except for reasons which had they existed or been known when the policy was written would have rendered the risk not an insurable risk. Every automobile insurance risk constitutes an insurable risk unless the operator's permit of the named insured has been revoked or suspended and is at the time of application for insurance so revoked or suspended. However, no insurer is required to write or renew automobile insurance on any risk if there exists a valid and enforceable outstanding judgment secured by an insurer, an agent, or licensed premium service company on account of automobile insurance premiums which the applicant or insured or any principal operator who is a member of the named insured's household has failed or refused to pay unless the applicant or insured pays in advance the entire premium for the full term of the policy sought to be issued or renewed or the annual premium, whichever is the lesser. An insurer is not precluded from effecting cancellation of an automobile insurance policy, either upon its own initiative or at the instance of an agent or licensed premium service company, because of the failure of any named insured or principal operator to pay when due any automobile insurance premium or any installment payment. However, notice of cancellation for nonpayment of premium notifies the person to whom the notice is addressed that the notice is void and ineffective if payment of the full amount of the premium or premium indebtedness, whichever is the greater, is made to the insurer, agent, or licensed premium service company named in the notice by the otherwise effective date of cancellation. This notice of cancellation is not considered ineffective for being conditional, ambiguous, or indefinite."
Name clarified; etc.
SECTION 804. Section 38-77-113 of the 1976 Code is amended to read:
"Section 38-77-113. If a driver's license is suspended or revoked because the licensee is determined by the Motor Vehicle Division of the South Carolina Department of Revenue and Taxation to have no motor vehicle liability insurance, the Deputy Director of the Motor Vehicle Division or the Director of the Department of Revenue and Taxation or his designee on behalf of the Motor Vehicle Division shall waive the reinstatement fee imposed pursuant to Section 56-1-390 if the licensee had motor vehicle liability coverage when his license was suspended or revoked. The Deputy Director of the Motor Vehicle Division, or the Director of the Department of Revenue and Taxation or his designee, shall document his reasons for waiving the fee in the records of the Department of Revenue and Taxation."
Name changed; notice and hearing before Administrative Law Judge Division
SECTION 805. Section 38-77-115 of the 1976 Code is amended to read:
"Section 38-77-115. The authorized agents for every insurer covered by the provisions of Section 38-77-110 shall post in a conspicuous location in their office or place of business a sign containing language to be required by regulation of the department, after notice and hearing before the Administrative Law Judge Division, that stipulates that insurer and agent may not refuse to write or renew that type of insurance, that tactics designed to avoid writing or renewing that type of insurance are not permissible including unreasonable delays in meeting with applicants, and that violations of the above should be reported to the director or his designee for appropriate action."
Name changed
SECTION 806. Section 38-77-120 of the 1976 Code is amended to read:
"Section 38-77-120. (a) No cancellation or refusal to renew by an insurer of a policy of automobile insurance is effective unless the insurer delivers or mails, to the named insured at the address shown in the policy, a written notice of the cancellation or refusal to renew. This notice:
(1) must be approved as to form by the director or his designee prior to use;
(2) shall state the date not less than fifteen days after the date of the mailing or delivering on which the cancellation or refusal to renew becomes effective;
(3) shall state the specific reason or reasons of the insurer for cancellation or refusal to renew.
(b) Subsection (a) of this section does not apply if the:
(1) insurer has manifested to the insured its willingness to renew by actually issuing or offering to the insured to issue a renewal policy, certificate, or other evidence of renewal, or has manifested such intention to the insured by any other means;
(2) named insured has demonstrated by some overt action to the insurer or its agent that he expressly intends that the policy be canceled or that it not be renewed."
Name changed
SECTION 807. Section 38-77-150 of the 1976 Code is amended to read:
"Section 38-77-150. No automobile insurance policy or contract may be issued or delivered unless it contains a provision by endorsement or otherwise, herein referred to as the uninsured motorist provision, undertaking to pay the insured all sums which he is legally entitled to recover as damages from the owner or operator of an uninsured motor vehicle, within limits which may be no less than the requirements of Section 38-77-140. The uninsured motorist provision shall also provide for no less than five thousand dollars' coverage for injury to or destruction of the property of the insured in any one accident but may provide an exclusion of the first two hundred dollars of the loss or damage. The director or his designee may prescribe the form to be used in providing uninsured motorist coverage and when prescribed and promulgated no other form may be used.
No action may be brought under the uninsured motorist provision unless copies of the pleadings in the action establishing liability are served in the manner provided by law upon the insurer writing the uninsured motorist provision. The insurer has the right to appear and defend in the name of the uninsured motorist in any action which may affect its liability and has thirty days after service of process on it in which to appear. The evidence of service upon the insurer may not be made a part of the record."
Name changed
SECTION 808. Section 38-77-200 of the 1976 Code is amended to read:
"Section 38-77-200. The uninsured motorist provision may not require arbitration of any claim arising under it, nor may anything not otherwise herein provided for or as may be provided in the form prescribed by the director or his designee be required of the insured except the establishment of legal liability of the uninsured motorist, nor may the insured be restricted or prevented in any manner from employing legal counsel or instituting legal proceedings."
Name changed
SECTION 809. Section 38-77-260 of the 1976 Code is amended to read:
"Section 38-77-260. (a) No person making payment or settlement of benefits for which the person is obligated under Sections 38-77-240 to 38-77-340 and no insurer may in connection with the payment or settlement of a claim for these first-party benefits or for any first-party benefits arising under an automobile insurer's coverage including, but not limited to, medical payments and uninsured motorist coverage, obtain or attempt to obtain from the claimant receiving the benefits any general release, covenant not to sue, assignment, article of subrogation, or any other instrument or document which purports to assign to that person or insurer all or any portion of any claim which the claimant may have against any other party or his insurer arising out of legal liability or which purports to constitute an agreement by the claimant that any amount received as first party benefits must be deducted from any settlement or judgment recoverable from any other party or his insurer arising out of legal liability. Every such purported general release, covenant not to sue, or similar instrument is null and void unless (1) the insurer or other person has delivered to the person entitled to the first-party benefits, or his legal representative, a disclosure statement, on a form approved by the director or his designee, fully and fairly disclosing the fact that the first-party benefits payable under Sections 38-77-240 to 38-77-340 are contractual obligations of the insurer or other person and are entirely separate and distinct from any obligation which the insurer or other person may have because of the legal liability of any person and that the person receiving the first-party benefits is not required and may not be required to release or relinquish any rights which he may have arising out of the legal liability of any person in order to receive payment or settlement of the first-party benefits arising under Sections 38-77-240 to 38-77-340 and (2) an interval of not less than three days has elapsed between the later of (i) the delivery of the disclosure statement or (ii) the payment or settlement of the first-party benefits and the execution of the general release, covenant not to sue, or similar instrument."
Name changed, etc.
SECTION 810. Section 38-77-280 of the 1976 Code is amended to read:
"Section 38-77-280. (A) Except as provided in subsection (B), all automobile insurers, including those insurance companies writing private passenger physical damage coverages only, shall make collision coverage and either comprehensive or fire, theft, and combined additional coverage available to an insured or qualified applicant who requests the coverage.
Collision coverage must have a mandatory deductible of two hundred fifty dollars, but an insured or qualified applicant, at his option, may select an additional deductible in appropriate increments up to one thousand dollars.
Comprehensive coverage or fire, theft, and combined additional coverages must have a mandatory deductible of two hundred fifty dollars, but an insured, at his option, may select an additional deductible in appropriate increments up to one thousand dollars. This deductible does not apply to auto safety glass. It is an unfair trade practice, as described in Sections 38-57-30 and 38-57-40, for an insurer or an agent to sell collision insurance, comprehensive coverage, or fire, theft, and combined additional coverages unless the insured is notified at the time of application of the savings which may be realized if the applicant or the insured selects a higher deductible. This notice is required only at the time of the initial sale and must be in a form approved by the director or his designee. An insurer may offer insureds lower deductibles at the insurer's option.
(B) Notwithstanding subsection (A) and Sections 38-77-110 and 38-77-920, automobile insurers may refuse to write automobile physical damage insurance coverage, including automobile comprehensive physical damage, collision, fire, theft, and combined additional coverage, for an applicant or existing policyholder, on renewal, for a motor vehicle customarily operated by an individual, either the named insured or another operator not excluded in accordance with Section 38-77-340 and who resides in the same household, where one or more of the conditions or factors prescribed in Section 38-73-455 exist. In addition, automobile insurers may refuse to write physical damage insurance coverage to an applicant or existing policyholder, on renewal, who has collected benefits provided under automobile insurance physical damage coverage during the thirty-six months immediately preceding the effective date of coverage, for two or more total fire losses or two or more total theft losses. Automobile insurers may refuse to write for private passenger automobiles physical damage insurance coverage, including automobile comprehensive physical damage, collision, fire, theft, and combined additional coverage, for an applicant or existing policyholder, on renewal, for a motor vehicle customarily operated by an individual, either the named insured or another operator not excluded in accordance with Section 38-77-340 and who resides in the same household, which does not qualify for the safe driver discount in Section 38-73-760(e).
(C) Notwithstanding Section 38-77-110, automobile physical damage coverage in an automobile insurance policy may be canceled at any time during the policy period by reason of the factors or conditions described in Section 38-73-455(A) or Section 38-77-280(B) which existed before the commencement of the policy period and which were not disclosed to the insurer at the commencement of the policy period.
(D) No policy of insurance which provides automobile physical damage coverage only may be ceded to the facility.
(E) Insurers of automobile insurance may charge a rate for physical damage insurance coverages different than those provided for in Section 38-73-457 if the rates are filed with the department and approved by the director or his designee. Any applicant or existing policyholder, to be charged this different rate, must be denied the coverage pursuant to subsection (B) at the rate provided in Section 38-73-457.
(F) A carrier may not cede collision coverage, comprehensive coverage, or fire, theft, and combined additional coverages with a deductible of less than two hundred fifty dollars. An insured or qualified applicant may select an additional deductible in appropriate increments up to one thousand dollars. However, the mandatory deductible does not apply to safety glass."
Name changed
SECTION 811. Section 38-77-320 of the 1976 Code is amended to read:
"Section 38-77-320. The department has the authority to issue and promulgate all necessary regulations not inconsistent with the provisions of this article to enforce, carry out, and make effective this article and to review all policies of insurance issued, renewed, sold, or delivered in this State to determine whether they are in compliance with law and the regulations promulgated under the law."
Name changed
SECTION 812. Section 38-77-330 of the 1976 Code is amended to read:
"Section 38-77-330. No claim for damage to property resulting from a motor vehicle accident may be denied or payment delayed because the person who is entitled to payment or any other person has a claim pending for bodily injury which may have arisen from the same or any other accident. Whenever an insurer has the appropriate motor vehicle coverage for the party liable and there is no dispute as to either the liability for the payment of the full property damages or the amount of monetary equivalent of these damages, then the amount payable is immediately due and owing and must be paid promptly. If the director or his designee determines that the payment of the amount was unnecessarily delayed, he may assess interest on the amount at the rate of eight percent per annum."
Name changed
SECTION 813A. Section 38-77-340 of the 1976 Code is amended to read:
"Section 38-77-340. Notwithstanding the definition of `insured' in Section 38-77-30, the insurer and any named insured must, by the terms of a written amendatory endorsement, the form of which has been approved by the Chief Insurance Commissioner, agree that coverage under such a policy of liability insurance shall not apply while the motor vehicle is being operated by a natural person designated by name. The agreement, when signed by the named insured and the person to be excluded, or by someone acting in the excluded person's behalf, is binding upon every insured to whom the policy applies. However, no natural person may be excluded unless (1) his driver's license has been turned in to the Motor Vehicle Division of the South Carolina Department of Revenue and Taxation or (2) an appropriate policy of liability insurance or other security as may be authorized by law has been properly executed in the name of the person to be excluded. The agent of the insurer writing the policy of insurance excluding a named driver shall determine that the necessary driver's license has been delivered to the Motor Vehicle Division of the Department of Revenue and Taxation or that a policy of insurance or security described in item (2) of this section is in effect before submitting the application for exclusion of a named driver.
The Motor Vehicle Division of the Department of Revenue and Taxation shall furnish to the agent an affidavit either stating that the necessary driver's license has been delivered to it or certifying that a policy of insurance or security described in item (2) of this section is in effect."
Name changed
SECTION 813B. Section 38-77-340 of the 1976 Code is amended to read:
"Section 38-77-340. Notwithstanding the definition of `insured' in Section 38-77-30, the insurer and any named insured must, by the terms of a written amendatory endorsement, the form of which has been approved by the director or his designee, agree that coverage under such a policy of liability insurance shall not apply while the motor vehicle is being operated by a natural person designated by name. The agreement, when signed by the named insured and the person to be excluded, or by someone acting in the excluded person's behalf, is binding upon every insured to whom the policy applies. However, no natural person may be excluded unless (1) his driver's license has been turned in to the Motor Vehicle Division of the South Carolina Department of Revenue and Taxation or (2) an appropriate policy of liability insurance or other security as may be authorized by law has been properly executed in the name of the person to be excluded. The agent of the insurer writing the policy of insurance excluding a named driver shall determine that the necessary driver's license has been delivered to the Motor Vehicle Division of the Department of Revenue and Taxation or that a policy of insurance or security described in item (2) of this section is in effect before submitting the application for exclusion of a named driver.
The Motor Vehicle Division of the Department of Revenue and Taxation shall furnish to the agent an affidavit either stating that the necessary driver's license has been delivered to it or certifying that a policy of insurance or security described in item (2) of this section is in effect."
Name changed; language deleted
SECTION 814. Subsection (A) of Section 38-77-350 of the 1976 Code is amended to read:
"(A) The director or his designee shall approve a form which automobile insurers shall use in offering optional coverages required to be offered pursuant to law to applicants for automobile insurance policies. This form must be used by insurers for all new applicants. The form, at a minimum, must provide for each optional coverage required to be offered:
(1) a brief and concise explanation of the coverage,
(2) a list of available limits and the range of premiums for the limits,
(3) a space for the insured to mark whether the insured chooses to accept or reject the coverage and a space for the insured to select the limits of coverage he desires,
(4) a space for the insured to sign the form which acknowledges that he has been offered the optional coverages,
(5) the mailing address and telephone number of the Insurance Department which the applicant may contact if the applicant has any questions that the insurance agent is unable to answer."
Name changed; Reinsurance Facility considered a "using agency"; etc.
SECTION 815. Section 38-77-510 of the 1976 Code is amended to read:
"Section 38-77-510. There is created a nonprofit, unincorporated legal entity known as the South Carolina Reinsurance Facility which is subject to regulations promulgated by the department and orders promulgated by the director or his designee which are not inconsistent with the purposes of this chapter.
The facility shall reinsure, at the option of the ceding automobile insurer and subject to the provisions of this chapter, the risk covered under any policy of automobile insurance. However, these cessions must be confined to quota share reinsurance of either a one hundred percent quota share of the risk or to any other percentage of quota share reinsurance the commissioner may permit by regulations promulgated by him.
The facility is considered to be a `using agency' as defined by Section 11-35-310."
Name changed; Reinsurance Facility considered a "using agency"; etc.
SECTION 816. Section 38-77-510 of the 1976 Code is amended to read:
"Section 38-77-510. There is created a nonprofit, unincorporated legal entity known as the South Carolina Reinsurance Facility which is subject to regulations promulgated by the department and orders promulgated by the director or his designee which are not inconsistent with the purposes of this chapter.
The facility shall reinsure, at the option of the ceding automobile insurer and subject to the provisions of this chapter, the risk covered under any policy of automobile insurance. However, these cessions must be confined to quota share reinsurance of either a one hundred percent quota share of the risk or to any other percentage of quota share reinsurance the department may permit by regulations promulgated by it.
The facility is considered to be a `using agency' as defined by Section 11-35-310."
Name changed
SECTION 817. Section 38-77-520 of the 1976 Code is amended to read:
"Section 38-77-520. No automobile insurer may be licensed to transact automobile insurance in this State unless it becomes a participating member of the facility with respect to automobile insurance and thereafter continues participation so long as it transacts automobile insurance in this State. Every member is bound by the plan of operation of the facility as approved or promulgated by the director or his designee and by any rules the governing board of the facility lawfully prescribes.
If the authority of an insurer to transact automobile insurance in this State terminates for any reason its obligations as a member of the facility nevertheless continue until all obligations have been fulfilled and the director or his designee has so found and certified to the governing board of the facility.
If an insurer merges into or consolidates with another insurer authorized to transact automobile insurance in this State, or another insurer authorized to transact automobile insurance in this State has reinsured the insurer's entire automobile insurance business in this State, both the insurer and its successor or the assuming reinsurer, as the case may be, are liable for the insurer's obligations in respect to the facility.
Any unsatisfied net liability to the facility of an insolvent insurer which is a member of the facility must be assumed by and apportioned among the remaining members in the same manner in which assessments or gain and loss are apportioned. The facility thereupon acquires and has all rights and remedies allowed by law in behalf of the remaining members against the estate or funds of the insolvent insurer for sums due the facility."
Name changed; "division" changed to "category"
SECTION 818. Section 38-77-530 of the 1976 Code is amended to read:
"Section 38-77-530. The plan of operation of the facility is subject to the approval of the director or his designee which may be granted only if the plan provides for equitable apportionment of the operating expenses and profits or losses among the members. The plan may, if the director or his designee considers it feasible and equitable, make provision for separate apportionments between private passenger automobile insurance business and commercial automobile insurance business, or, alternatively or in addition to that division, the plan may make provision for separate apportionments between automobile liability insurance business, including medical payments and uninsured motorist insurance, and automobile physical damage insurance business. Any such apportionments shall give consideration to a comparison between the writings or car-year exposures of each insurer of automobile insurance and the total writings or car-year exposures of all automobile insurers or, in the case of any separate apportionments approved by the director or his designee, a comparison between the writings or car-year exposures of each insurer within the applicable category of automobile insurance and the writings or car-year exposures of all insurers within that category.
In connection with his approval of the plan, the director or his designee may require that the plan make provision for such comparisons for a one-year period or for a longer period not to exceed five years and may provide for weighing the experience so as to attach a greater weight to the more recent experience.
In connection with the approval of the plan's provisions respecting equitable apportionment of the operating expenses or gains or losses of the facility, the director or his designee may require that the plan make provision for a comparison between each insurer's percentage of the aggregate written premiums or car-year exposures respecting automobile insurance or any such category thereof and the insurer's percentage of total cessions to the facility of such insurance or category thereof so as to provide that the insurer's portion of the operating expenses or gains or losses must be the average of the two percentages; or the director or his designee may approve or require any other similar or comparable provision for the apportionment of the expenses or gains or losses of the facility which relates insurers' shares to their respective utilization of the facility."
Name changed
SECTION 819. Section 38-77-570 of the 1976 Code is amended to read:
"Section 38-77-570. The funds and reserves of the facility must be invested in lawful investments permitted to property and casualty insurers under the laws and regulations governing investments of property and casualty insurers. In determining the net profit or loss resulting from the operations of the facility, all investment income and profits must be taken into consideration. No distribution of the funds, assets, property, or profits of the facility may be made except pursuant to the written order of the director or his designee."
Name changed; etc.
SECTION 820. Section 38-77-580 of the 1976 Code is amended to read:
"Section 38-77-580. The operations and affairs of the facility are under the direction and control of a governing board of nineteen persons of whom four must be residents of South Carolina appointed by the Governor of South Carolina to represent consumers. The director shall appoint eight persons to represent the insurance industry; in appointing these persons, the director shall select two from a list of not less than five nominated by the American Insurance Association from the officers or employees of insurers licensed in South Carolina and which are members or subscribers of that organization; he shall select two from a list of not less than five persons nominated by the American Mutual Insurance Alliance from the officers or employees of insurers licensed in South Carolina and which are members or subscribers of that organization; he shall select two from a list of not less than five persons nominated by the National Association of Independent Insurers from the officers or employees of insurers licensed in South Carolina and which are members or subscribers of that organization; he shall select two persons, one of whom must be an officer or employee of a stock insurer licensed in South Carolina and not a member or subscriber of any of these organizations, and one of whom must be an officer or employee of a nonstock insurer licensed in South Carolina and not a member or subscriber of any of these organizations; however, of the eight persons appointed to represent the insurance industry, not less than five must be residents of South Carolina and those who are not residents of South Carolina must have job responsibilities that include the supervision over South Carolina operations; not less than two must be officers or employees of insurers licensed to transact automobile insurance in South Carolina and domiciled therein. The director shall appoint four persons to represent producers, all of whom must be residents of South Carolina; he shall select two such persons from a list of not less than five nominated by the stock agents' association and two from a list of not less than five persons nominated by the mutual agents' association. The director shall appoint two persons to represent the designated agents, one of whom must be an officer of a premium service finance company and the other of whom must be a designated agent and both of whom must be residents of South Carolina. In addition the Consumer Advocate is an ex-officio member of the governing board of the Reinsurance Facility. No person who is associated with any business within the meaning of Section 8-13-20, which is either subject to regulation by the Department of Insurance or which provides goods or services to the facility for compensation, is eligible for appointment to the board to represent consumers, except that any person serving on the board representing consumers on the effective date of this provision who would otherwise be disqualified from serving based on this provision may continue to serve for the remainder of his current term.
The director is chairman of the board, ex officio, but has no vote except in the case of a tie. The director, or his designated representative, shall preside over all meetings which must be held not less than quarterly in South Carolina at the times and places the director designates. However, upon the filing with the director of a request for a meeting signed by not fewer than five members of the board and specifying the subjects to be discussed at the proposed meeting, the director shall call a special meeting of the board to be held not less than fifteen nor more than thirty days after receipt of the request. Notice, in writing, of the special meeting must be provided members of the board.
Members of the board shall serve one year or until their successors are appointed and have qualified.
Amendment of the plan of operation may be made only at the annual meeting of the board or at a special meeting called by the director for that purpose and so specified in the notice of meeting. Amendments of the plan require the affirmative vote of two-thirds of all the board members and are subject to the approval of the director or his designee. The director or his designee may approve amendments only if they are consistent with the purposes of this chapter. If the consumer-representative members of the board unanimously dissent from a proposed amendment and specify their reasons for dissent in writing, the director or his designee may not approve the amendment until after a public hearing addressed to the reasons for the dissent.
The director may make provision for voting by proxy at meetings.
The director or his designee, through the department, may propose to the board any amendment to or modification of the plan that the director or his designee considers to be necessary to render the plan reasonable or consistent with the purposes of this chapter, specifying in writing the reasons for any proposed amendment or modification. In the event that the board fails to adopt his proposed amendment or modification, the director or his designee may, after notice and public hearing addressed to the reasons for the proposed amendment or modification, promulgate the amendment or modification considered necessary to render the plan reasonable or consistent with the purposes of this chapter."
Name changed
SECTION 821. Subsection (a) of Section 38-77-590 of the 1976 Code is amended to read:
"(a) Not more than six months after July 9, 1974, or at an earlier time as the director or his designee considers necessary by reason of complaints regarding want of access to automobile insurance in particular areas or want of outlets for producers, the director or his designee shall survey the various areas of the State to ascertain if sufficient marketing outlets exist in all areas or are available to all producers. Upon a finding by the director or his designee that insufficient marketing outlets exist in particular areas or that certain producers have been deprived of a market for risks previously serviced by them, the director or his designee may, after consultation with the facility, designate one or more insurers to service the areas through agents appointed by them or may designate the producers as the agents of any insurer. The arrangements shall include provision for one hundred percent quota share reinsurance through the facility of any automobile insurance policy marketed through the arrangements, at the option of the insurer, and the reinsurance is not subject to the statutory provisions or regulations regarding excessive utilization of the facility."
Name changed
SECTION 822. Subsection (b) of Section 38-77-590 of the 1976 Code is amended to read:
"(b) After the effective date of this section, those producers previously designated by the director or his designee may continue to serve in that capacity under the jurisdiction and control of the governing board of the facility, except that any change in the rate of commissions allowed designated producers is subject to the approval of the director or his designee."
Name changed
SECTION 823. Subsection (e) of Section 38-77-590 of the 1976 Code is amended to read:
"(e) The governing board shall assign a specific location to each producer designated. The governing board shall determine from the director or his designee the locations assigned by him to those producers whom the director or his designee has designated. Designated producers may not open or maintain any other locations without the written authorization of the governing board; provided, however, that an applicant maintaining multiple offices on June 4, 1987, is entitled to maintain two locations as a designated agent which he owned and operated at that time and through which premiums in at least the amount of seventy-five thousand dollars were written. The governing board shall terminate the designation, and the director or his designee shall revoke all agents' licenses of any producer who does not comply with this requirement upon demand by the governing board. Upon termination, the producer's expirations on designated business become the property of the facility."
Name changed
SECTION 824. Subsection (f) of Section 38-77-590 of the 1976 Code is amended to read:
"(f) The designation of a producer by the director or his designee or the governing board is transferable to a spouse, child, parent, brother, or sister of the producer upon the designated producer's retirement, incapacity, or death. The duties of a designated producer may be performed by one or more qualified employees of the producer or the producer's corporate agency."
Name changed
SECTION 825. Subsection (g) of Section 38-77-590 of the 1976 Code is amended to read:
"(g) Neither a designated producer, nor any employee of a designated producer or the producer's corporate agency, nor any partner or shareholder in any related insurance agency, related premium service company, or related other business, may have any direct or indirect connection with any voluntary market outlet for the purpose of writing any type of automobile insurance in this State except for motorcycle insurance and types not cedable to the facility. The governing board shall terminate the designation of any producer, and the director or his designee shall revoke all licenses of the producer and of any other insurance agent and premium service company knowingly involved in this connection. Upon termination, the producer's expirations on designated business become the property of the facility."
Name changed
SECTION 826. Section 38-77-600 of the 1976 Code is amended to read:
"Section 38-77-600. The rate or premium charged by insurers of private passenger automobile insurance must include a facility recoupment charge, which must be added to the appropriate base rate or objective standards rate prescribed in Sections 38-73-455 and 38-73-457. The operating losses of the facility for a twelve-month period must be recouped in the subsequent twelve-month period.
(1) Prior to December first of each year, the governing board of the facility shall calculate the recoupment amount, by coverage, by dividing the net facility operating loss, adjusted to reflect prudently incurred expenses, consistent with the provisions of Section 38-73-465, and the time value of money, by mandated coverage for the preceding facility accounting year, by the total number of earned car years in South Carolina, by coverage, for the same period of time. .386 multiplied by the recoupment is to be borne by risks having zero surcharge points under the Uniform Merit Plan promulgated by the department. The remainder of the recoupment (.614 multiplied by the recoupment) represents R in the formula, P(1)X + 2P(2)X + 3P(3)X + 4P(4)X + 5P(5)X + 6P(6)X + 7P(7)X + 8P(8)X + 9P(9)X + 10P(1)+I0X = R. In this formula to be utilized in determining the facility recoupment charge:
(a) P(1) is the percentage of risks which have one surcharge point under the Uniform Merit Rating Plan;
(b) P(2) is the percentage of risks which have two surcharge points under the Uniform Merit Rating Plan;
(c) P(3) is the percentage of risks which are subject to a surcharge of three points under the Uniform Merit Rating Plan;
(d) P(4) is the percentage of risks which are subject to a surcharge of four points under the Uniform Merit Rating Plan;
(e) P(5) is the percentage of risks subject to a surcharge of five points under the Uniform Merit Rating Plan;
(f) P(6) is the percentage of risks subject to a surcharge of six points under the Uniform Merit Rating Plan;
(g) P(7) is the percentage of risks subject to a surcharge of seven points under the Uniform Merit Rating Plan;
(h) P(8) is the percentage of risks subject to a surcharge of eight points under the Uniform Merit Rating Plan;
(i) P(9) is the percentage of risks subject to a surcharge of nine points under the Uniform Merit Rating Plan;
(j) P(1)+I0 or more is the percentage of risks subject to a surcharge of ten or more points under the Uniform Merit Rating Plan;
(k) X is the dollar amount by coverage, to be charged all risks having one surcharge point under the Uniform Merit Rating Plan promulgated by the department. This dollar amount, by coverage, is the facility recoupment charge to be added to the base rate or objective standards rate prescribed in Sections 38-73-455 and 38-73-457 for all risks which have one surcharge point.
(2) The facility recoupment charge by coverage to be added to the base rate or objective standards rate for all risks which have one surcharge point under the Uniform Merit Rating Plan is calculated by multiplying X by a factor of one.
(3) The facility recoupment charge by coverage to be added to the base rate or objective standards rate for all risks which have two surcharge points under the Uniform Merit Rating Plan is calculated by multiplying X by a factor of two.
(4) The facility recoupment charge by coverage to be added to the base rate or objective standards rate for all risks which are subject to a surcharge of three points under the Uniform Merit Rating Plan is calculated by multiplying X by a factor of three.
(5) The facility recoupment charge by coverage to be added to the base rate or objective standards rate for all risks which are subject to a surcharge of four points under the Uniform Merit Rating Plan is calculated by multiplying X by a factor of four.
(6) The facility recoupment charge by coverage to be added to the base rate or objective standards rate for all risks which are subject to a surcharge of five points under the Uniform Merit Rating Plan is calculated by multiplying X by a factor of five.
(7) The facility recoupment charge by coverage to be added to the base rate or objective standards rate for all risks which are subject to a surcharge of six points under the Uniform Merit Rating Plan is calculated by multiplying X by a factor of six.
(8) The facility recoupment charge by coverage to be added to the base rate or objective standards rate for all risks which are subject to a surcharge of seven points under the Uniform Merit Rating Plan is calculated by multiplying X by a factor of seven.
(9) The facility recoupment charge by coverage to be added to the base rate or objective standards rate for all risks which are subject to a surcharge of eight points under the Uniform Merit Rating Plan is calculated by multiplying X by a factor of eight.
(10) The facility recoupment charge by coverage to be added to the base rate or objective standards rate for all risks which are subject to a surcharge of nine points under the Uniform Merit Rating Plan is calculated by multiplying X by a factor of nine.
(11) The facility recoupment charge by coverage to be added to the base rate or objective standards rate for all risks which are subject to a surcharge of ten or more points under the Uniform Merit Rating Plan is calculated by multiplying X by a factor of ten.
(12) In determining the number of surcharge points a risk has for the purposes of this section, no surcharge points assigned under the Uniform Merit Rating Plan because the principal operator of the automobile has not been licensed in any state for at least one year immediately preceding the writing of the risk or as a result of a failure of any motor vehicle equipment requirement may be considered.
(13) This section applies to all private passenger automobile insurance policies issued or renewed after June 30, 1989. However, insurers unable to comply with the provisions of this section and renewal provisions required by law may comply with this section at any time after June 30, 1989, but in no event later than October 1, 1989."
Name changed
SECTION 827. Section 38-77-610 of the 1976 Code is amended to read:
"Section 38-77-610. Before December second of each year, the governing board of the facility shall file the facility recoupment charges calculated pursuant to Section 38-77-600 with the director or his designee. The director or his designee shall then hold a public hearing subject to the provisions of the Administrative Procedures Act to determine if the facility recoupment charges were calculated in accordance with the provisions of Section 38-77-600. The facility recoupment charges must be approved if it is determined that they were properly calculated. If it is determined that the facility recoupment charges were improperly calculated, the director or his designee shall then establish the appropriate charges. The provisions of the Administrative Procedures Act apply to any court appeal brought thereunder and the charges approved by the director or his designee may be put into effect under bond in a similar manner that a public utility may put a proposed rate increase into effect under bond as provided by law."
Name changed
SECTION 828. Article 9, Chapter 77, Title 38 of the 1976 Code is amended to read:
"Article 9
Unlawful Acts Generally
Section 38-77-910. It is an act of unlawful discrimination for an automobile insurer to make any distinction between automobile insurance policyholders or applicants for automobile insurance with respect to coverage, rates, claims, or other services except as the distinctions are provided for in the rating plans for the classification of risks and territories promulgated by the department.
Section 38-77-920. Except as provided for in Section 38-77-110 and as is specifically provided for otherwise by law, no automobile insurer may refuse acceptance of automobile insurance for an insurable risk from any applicant nor require that certain classes or types of risks be placed through some particular agent or employee. This section is not intended to preclude any insurer from recognizing and giving effect to the property rights of agents in expirations or renewals. No agent who represents more than one insurer of automobile insurance may refuse to accept in behalf of an insurer represented by him automobile insurance for an insurable risk where the applicant for insurance designates by name or description the insurer of his choice. If the applicant relies upon the skill and judgment of the agent to place the risk in any insurer represented by the agent, the agent may place the risk in the insurer which he considers appropriate. No insurer may agree, collude, or conspire with an agent or give, offer, or promise an agent anything of value to place any risk or any class or type of risk under such circumstances in another insurer. Every such agreement is utterly void and every act of collusion or conspiracy constitutes an act of unfair competition by both the insurer and agent which, if proved, must result in the suspension or revocation of the license of each for not less than one year, in addition to any other penalties or liabilities applicable. No automobile insurer authorized to transact automobile insurance in this State which offers automobile insurance through the mails or uses the mails in transacting automobile insurance on insurable risks situate in this State may restrict its mailings or offerings to certain counties, areas, or zip-code territories of this State. The director or his designee is directed to examine an insurer's records at any time the director or his designee considers it necessary to determine that the insurer is not so restricting or limiting its offerings.
Section 38-77-940. No insurer of automobile insurance shall directly or indirectly by offer or promise of reward or imposition or threat of penalty or through any artifice or device whatsoever, confer any benefit upon any agent or impose any detriment upon any such agent for the purpose of avoiding any class or type of automobile insurance risk which the insurer considers it necessary to reinsure in the facility; nor shall any offer or promise of reward or imposition or threat of penalty in connection with any other line or type of insurance be so tied to automobile insurance as to have a tendency to induce the agent to avoid any such class or type of automobile insurance risk; nor shall any insurer of automobile insurance provide to agents, directly or indirectly, orally or in writing, any listing of classes or types of automobile insurance risks which it considers necessary to reinsure in the facility; nor shall any insurer of automobile insurance terminate its insurance business with any one agent over the writing of certain classes or types of automobile insurance risks without also pulling out of the entire State or terminating its similar insurance business with all other agents in the State at the same time for a period of time of at least 365 days, except that if the insurer reinstates the agent within thirty days of the determination that the termination was unlawful, then this provision shall not apply; nor shall any insurer of automobile insurance do anything unfair, or unfairly fail to do anything, which has the effect of, or which results in, causing any ceded insurance business to have a detrimental effect on any incentive bonuses paid by the insurer to agents. Any act in violation of this section constitutes an act of unlawful discrimination and unfair competition which, if wilful, shall result in the suspension or revocation of the insurer's certificate of authority for not less than twelve months. Any agreement made in violation of this section shall be void.
Nothing in this section may be considered to preclude or impair agreements between insurers and their agents or some of their agents to pay contingency commissions or a profit-sharing bonus based upon the quality of business; nor shall the insurers, in any manner, use that business placed in the facility when determining the quality bonus; nor may it be considered to preclude an agreement between any agent and an insurer of automobile insurance to exclude from any profit-sharing or contingency arrangement automobile insurance business coming unsolicited to the agent and written by him solely because of the mandate of coverage provided in this chapter.
No insurer of automobile insurance shall cancel its representation by an agent primarily because of the volume of automobile insurance placed with it by the agent on account of the statutory mandate of coverage nor because of the amount of the agent's automobile insurance business which the insurer has considered it necessary to reinsure in the facility.
Section 38-77-950. It is the intent of this chapter that the facility must not be excessively nor unreasonably utilized by automobile insurers for unfairly competitive purposes or for purposes of unfairly discriminating against certain classes or types of automobile insurance risks having the same or similar objective risk characteristics as other risks in the same class under the rating plan for the classification of risks promulgated by the department, nor for the purpose of discriminating against the risks or risks in certain rating territories. The director or his designee shall prohibit unreasonable or excessive utilization of the facility. A prima facie case of excessive or unreasonable utilization is established upon a showing that an automobile insurance insurer or a group of insurers under the same management has ceded or is about to cede more than thirty-five percent of total direct cedeable written premiums on South Carolina automobile insurance as reported in the most recently filed annual statement of the insurer or group. Upon the written request of the policyholder, insurance companies doing business in this State shall give written notice to the policyholder informing him whether or not he and a driver under the policy is in the facility. Insurers shall give written notice to the policyholder of a risk ceded to the facility which does not qualify for the safe driver discount in Section 38-73-760(e).
Section 38-77-960. When dealing with the agents of the company, who are licensed to sell automobile insurance, the company may not use any of the business placed in the facility in determining the profitability of that agent's business. Further, the company shall not ask any agent not to write any kind of automobile business or hold the facility business against any agent in any manner which could be construed as being detrimental to the agent."
Name changed
SECTION 829. Section 38-77-1120(a) of the 1976 Code is amended to read:
Section 38-77-1120. As used in this article:
"(a) `Authorized agency' means:
(1) the South Carolina State Law Enforcement Division, the Division of the State Highway Patrol of the Department of Public Safety, the sheriff's department of any county of this State, and any duly constituted criminal investigative department or agency of another state of the United States;
(2) the Attorney General of this State, any circuit solicitor of this State, any prosecuting attorney for a county, circuit, or district of another state or of the United States;
(3) the South Carolina Department of Insurance, the Division of Motor Vehicles of the Department of Revenue and Taxation, and the South Carolina Department of Consumer Affairs of the Attorney General's Office; and
(4) the United States Department of Justice and its Federal Bureau of Investigation."
Name changed
SECTION 830. Articles 1 and 3, Chapter 79, Title 38 of the 1976 Code is amended to read:
Article 1
General Provisions
Section 38-79-10. All medical malpractice insurance claims filed in the State with any insurer must be reported to the department by the insurer in the form and under the terms and conditions that the director or his designee prescribes. The director or his designee shall maintain complete and accurate records on all medical malpractice claims, including the causes of the complaints, the disposition of each claim, and any other information which he considers important in observing and reporting on professional liability trends in this State, including, but not limited to, the reserves set aside for each claim, the amounts paid in settlement or awarded by jury, and the names of the claimant and defendant. The director or his designee may release to appropriate disciplinary and licensing agencies any such data or information which may assist the agencies in improving the quality of health care. The department may promulgate regulations necessary to carry out the provisions of this section.
Section 38-79-20. All medical malpractice insurance carriers shall file with the appropriate professional or occupational licensing board all final judgments, settlements, agreements, and awards against any licensee of that board. All information relative to parties involved is and shall remain confidential.
Article 3
South Carolina Medical Malpractice Liability
Joint Underwriting Association
Section 38-79-110. As used in this article:
(1) `Association' means any joint underwriting association established pursuant to the provisions of this article.
(2) `Licensed health care providers' means physicians and surgeons, nurses, oral surgeons, dentists, pharmacists, chiropractors, podiatrists, hospitals, nursing homes, or any similar major category of licensed health care providers.
(3) `Medical malpractice insurance' means medical professional liability insurance or insurance protection against the legal liability of the insured and against loss, damage, or expense incident to a claim arising out of the death or injury of any person as the result of negligence or malpractice in rendering or failing to render professional service by any licensed physician, licensed health care provider, or hospital.
(4) `Net direct premiums' means gross direct premiums written on bodily injury liability insurance, other than automobile liability insurance, homeowners liability insurance, and farmowners liability insurance, including the liability component of multiple peril package policies, as computed by the director or his designee, less return premiums or the unused or unabsorbed portions of premium deposits.
Section 38-79-120. (1) A joint underwriting association (association) is created, consisting of all insurers authorized to write within this State, on a direct basis, bodily injury liability insurance, other than automobile bodily injury liability insurance, homeowners liability insurance, and farmowners liability insurance, including insurers covering such peril in multiple peril package policies. Every such insurer is and must remain a member of the association as a condition of its authority to continue to transact such kind of insurance in this State.
(2) The purpose of the association is to provide medical malpractice insurance on a self-supporting basis to the fullest extent possible.
(3) The association must be called into operation at any time that the department finds and declares the existence of an emergency because of the unavailability of medical malpractice liability insurance, or the unavailability of medical malpractice liability insurance on a reasonable basis through normal channels, in respect to all or any one or more of the major categories of licensed health care providers listed in item (2) of Section 38-79-110.
Section 38-79-130. The association, pursuant to the provisions of this article and the approved plan of operation in respect to medical malpractice insurance, has the power on behalf of its members:
(1) To issue, or cause to be issued, policies of insurance to applicants including incidental coverages, such as, but not limited to, premises or operations liability coverage on the premises where services are rendered, all subject to limits of liability as specified in the plan of operation but not to exceed one hundred thousand dollars for each claimant under one policy and three hundred thousand dollars for all claimants under one policy in any one year.
(2) To underwrite medical malpractice insurance and to adjust and pay losses with respect thereto or to appoint service companies to perform those functions.
(3) To cede and assume reinsurance.
Section 38-79-140. (1) The association must operate pursuant to a plan of operation which shall provide for economic, fair, and nondiscriminatory administration and for the prompt and efficient provision of medical malpractice insurance and may contain other provisions including, but not limited to, preliminary assessment of all members for initial expenses necessary to commence operations, establishment of necessary facilities, management of the association, assessment of the members to defray losses and expenses, commissions arrangements, reasonable and objective underwriting standards, acceptance and cession of reinsurance, appointment of servicing carriers, and procedures for determining amounts of insurance to be provided by the association.
(2) The plan of operation shall provide that any profit achieved by the association must be added to the reserves of the association or returned to the policyholders as a dividend.
(3) The plan of operation becomes effective and operative no later than thirty days after the declaration of any emergency by the department.
(4) Amendments to the plan of operation may be made by the directors of the association with the approval of the director or his designee or must be made at the direction of the director or his designee after due notice and public hearing.
Section 38-79-150. Any licensed health care provider in a category in which the department has declared an emergency exists is entitled to apply to the association for coverage. The application may be made on behalf of the applicant by a licensed agent or broker authorized in writing by the applicant. If the association determines that the applicant meets the underwriting standards of the association as set forth in the approved plan of operation and there is no unpaid, uncontested premium due from the applicant for any prior insurance of the same kind, the association, upon receipt of the premium, or a portion thereof as prescribed by the plan of operation, shall cause to be issued a policy of medical malpractice liability insurance for a term of one year.
The rates, rating plans, rating rules, rating classifications, territories, and policy forms applicable to insurance written by the association and the statistical and experience data relating thereto are subject to this article and to those provisions of Chapter 73 of this title which are not inconsistent with the purposes and provisions of this article.
Section 38-79-160. The director or his designee shall obtain complete statistical data in respect to medical malpractice losses and reparation costs as well as all other costs or expenses which underlie or are related to medical malpractice liability insurance. He shall promulgate any statistical plan he considers necessary for the purpose of gathering data referable to loss and loss adjustment expense experience and other expense experience. When a statistical plan is promulgated all members of the association shall adopt and use it. The director or his designee shall also obtain statistical data in respect to the costs of compensating or rehabilitating victims of medical malpractice without respect to insurance for purposes of studying the feasibility or desirability of alternative medical malpractice compensation systems and estimating the impact of medical malpractice loss and insurance costs upon other compensation and insurance systems such as workers' compensation and accident and health insurance. He may require from any person obtaining insurance through the association loss, claim, or expense data. This information or data is confidential and the physician-patient privilege must be preserved.
Section 38-79-170. In respect to the structuring of rates for medical malpractice liability insurance and the determination of the profit or loss of the association in respect to that insurance, due consideration must be given by the director or his designee to all investment income.
Section 38-79-180. Within a time that the director or his designee directs, the association shall submit, for the approval of the director or his designee, an initial filing, in proper form, of policy forms, classifications, rates, rating plans, and rating rules applicable to medical malpractice liability insurance to be written by the association. In the event the director or his designee disapproves the initial filing, in whole or in part, the association shall amend the filing, in whole or in part, in accordance with the direction of the director or his designee. If the director or his designee is unable to approve the filing or amended filing, within the time specified, he shall promulgate the policy forms, classifications, rates, rating plans, and rules to be used by the association in making rates for and writing the insurance.
Section 38-79-190. (1) The director or his designee shall specify whether policy forms and the rate structure must be on a `claims-made' or `occurrence' basis and coverage may be provided by the association only on the basis specified by the director or his designee. The director or his designee shall specify the `claims-made' basis only if the contract makes provision for residual `occurrence' coverage upon the retirement, death, disability, or removal from the State of the insured. Provision may be made for a premium charge allocable to any such residual `occurrence' coverage and the premium charges for the residual coverage must be segregated and separately maintained for such purpose which may include the reinsurance of all or a part of that portion of the risk.
(2) The policy may not contain any limitation in relation to the existing law in tort as provided by the statute of limitations of the State of South Carolina.
(3) The policy form whether on a `claims-made' or `occurrence' basis may not require as a condition precedent to settlement or compromise of any claim the consent or acquiescence of the insured. However, such settlement or compromise may never be held or considered to be an admission of fault or wrongdoing by the insured.
(4) The premium rate charged for either or both `claims-made' or `occurrence' coverage must be at rates established on an actuarially sound basis, including consideration of trends in the frequency and severity of losses, and must be calculated to be self-supporting.
Section 38-79-200. The association is authorized to provide a rate increase or assessment which is subject to the approval of the director or his designee.
Section 38-79-210. Any deficit sustained by the association in any year must be recouped, pursuant to the plan of operation and the rating plan then in effect, by one or both of the following procedures:
(1) An assessment upon the policyholders which may not exceed one additional annual premium at the then current rate.
(2) A rate increase applicable prospectively.
Section 38-79-220. Effective after the initial year of operation, rates, rating plans, and rating rules, and any provision for recoupment through policyholder assessment or premium rate increase, must be based upon the association's loss and expense experience and investment income, together with any other information based upon such experience and income as the director or his designee considers appropriate. The resultant premium rates must be on an actuarially sound basis and must be calculated to be self-supporting.
In the event that sufficient funds are not available for the sound financial operation of the association, pending recoupment as provided in Section 38-79-210, all members shall, on a temporary basis, contribute to the financial requirements of the association in the manner provided for in Section 38-79-230. Any such contribution must be reimbursed to the members following recoupment as provided in Section 38-79-210.
Section 38-79-230. All insurers which are members of the association shall participate in its writings, expenses, profits, and losses in the proportion that the net direct premiums of each member (excluding that portion of premiums attributable to the operation of the association) written during the preceding calendar year bear to the aggregate net direct premiums written in this State by all members of the association. Each insurer's participation in the association must be determined annually on the basis of the net direct premiums written during the preceding calendar year, as reported in the annual statements and other reports filed by the insurer with the department. The assessment of a member insurer, after hearing, may be ordered deferred in whole or in part upon application by the insurer if, in the opinion of the director or his designee, payment of the assessment may render the insurer insolvent or in danger of insolvency or otherwise may leave the insurer in a condition that further transaction of the insurer's business may be hazardous to its policyholders, creditors, members, subscribers, stockholders, or the public. If payment of an assessment against a member insurer is deferred by order of the director or his designee in whole or in part, the amount by which the assessment is deferred must be assessed against other member insurers in the same manner as provided in this section. In the order of deferral or in subsequent orders as may be necessary, the director or his designee shall prescribe a plan by which the assessment deferred must be repaid to the association by the impaired insurer with interest at the six-month treasury bill rate adjusted semiannually. Profits, dividends, or other funds of the association to which the insurer is otherwise entitled may not be distributed to the impaired insurer but must be applied toward repayment of any assessment until the obligation has been satisfied. The association shall distribute the repayments, including interest on them, to the other member insurers on the basis on which assessments were made.
Section 38-79-240. Every member of the association is bound by the approved plan of operation of the association and by any other rules the board of directors of the association lawfully prescribes.
Section 38-79-250. (1) If the authority of an insurer to transact bodily injury liability insurance, other than automobile, homeowners, or farmowners, in this State terminates for any reason its obligations as a member of the association nevertheless continue until all its obligations have been fulfilled and the director or his designee has so found and certified to the board of directors.
(2) If a member insurer merges into or consolidates with another insurer authorized to transact such insurance in this State or another insurer authorized to transact such insurance in this State has reinsured the insurer's entire general liability business in this State, both the insurer and its successor or assuming reinsurer, as the case may be, are liable for the insurer's obligations in respect to the association.
(3) Any unsatisfied net liability of any insolvent member of the association must be assumed by and apportioned among the remaining members in the same manner in which assessments or gain and loss are apportioned and the association shall thereupon acquire and have all rights and remedies allowed by law in behalf of the remaining members against the estate or funds of the insolvent insurer for funds due the association.
Section 38-79-260. The association is governed by a board of twenty-one directors, nine of whom are appointed by the Governor, one of whom represents consumers, two of whom represent licensed insurance agents or brokers, three of whom are members of the South Carolina Medical Association, two of whom are members of the South Carolina Hospital Association, and one of whom is a member of the South Carolina Dental Association. Twelve members are elected by cumulative voting by members of the association, whose votes in the election must be weighed in accordance with each member's net direct premiums written during the preceding calendar year. The approved plan of operation of the association may make provision for combining insurers under common ownership or management into groups for voting, assessment, and all other purposes and may provide that not more than one of the officers or employees of such a group may serve as a director at any one time. The insurer representatives of the board of directors must be elected at a meeting of the members or their authorized representatives, which must be held at a time and place designated by the Director of the Department of Insurance. The Director of the Department of Insurance is chairman of the board of directors, ex officio, and he, or his designee, must preside at all meetings of the board but has no vote except in the case of a tie.
Section 38-79-270. Any applicant for insurance through the association, person insured pursuant to this article or his representative, or any insurer adversely affected or claiming to be adversely affected by any ruling, action, or decision by or on behalf of the association may appeal to the department within thirty days after notice of the ruling, action, or decision.
Section 38-79-280. The association shall file in the office of the department annually, by March first, a statement which contains information with respect to its transactions, condition, operations, and affairs during the preceding year. The statement shall contain such matters and information as are prescribed by the director or his designee and must be in the form he directs. The director or his designee may, at any reasonable time, require the association to furnish additional information with respect to its transactions, condition, or any matter connected therewith considered to be material and of assistance in evaluating the scope, operation, and experience of the association.
Section 38-79-290. The director or his designee shall make an examination into the financial condition and affairs of the association at least annually and shall file a report thereon with the department, the Governor, and the General Assembly. The expenses of the examination must be paid by the association."
Name changed
SECTION 831. Section 38-79-430 of the 1976 Code is amended to read:
"Section 38-79-430. The Board of Governors (Board) is created to manage and operate the Fund. The Board is composed of the Director of the Department of Insurance, three physicians to be appointed by the Governor after consultation with the South Carolina Medical Association, two dentists to be appointed by the Governor after consultation with the South Carolina Dental Association, two hospital representatives to be appointed by the Governor after consultation with the South Carolina Hospital Association, two insurance representatives to be appointed by the Governor after consultation with the insurance industry, one attorney to be appointed by the Governor after consultation with the South Carolina Bar, one attorney to be appointed by the Governor after consultation with the South Carolina Trial Lawyers Association, and two representatives of the general public appointed by the Governor who are unaffiliated with insurance or health care industries or the medical or legal professions. The appointed members shall serve for a term of six years. However, of those first appointed, one physician, one dentist, one hospital representative, and one insurance representative must be appointed for a term of two years and one representative of the general public, one attorney, one insurance representative, and one hospital representative must be appointed for a term of four years. The Board must meet at the call of the chairman or a majority of the members but in any event it must meet at least once a year. A majority of the Board members shall constitute a quorum for the transaction of any business of the Board. The affirmative vote by a majority of the quorum present at a duly called meeting after notice is required to exercise any function of the Board. The Board may promulgate any regulations necessary to carry out the provisions of this article. The Director of the Department of Insurance must act in an advisory capacity and as chairman of the Board but has no vote. He may designate a deputy or other officer of his agency to serve in his behalf on the Board."
Name changed; etc.
SECTION 832. Articles 1 and 3, Chapter 81, Title 38 of the 1976 Code is amended to read:
Article 1
Reporting Requirements
Section 38-81-10. All legal professional malpractice insurance claims filed in the State with any insurer must be reported to the department by the insurer in the form and under the terms and conditions that he prescribes. The director or his designee shall maintain complete and accurate records on all the claims including the causes of the complaints, the disposition of each claim, and any other information which he considers important in observing and reporting on professional liability trends in this State, including, but not limited to, the reserves set aside for each claim, the amounts paid in settlement or awarded by jury, and the names of the claimant and defendant. The director or his designee may release to appropriate disciplinary and licensing agencies any data or information which may assist the agencies in improving the quality of legal professional service. The department may promulgate regulations necessary to carry out the provisions of this chapter.
Section 38-81-20. There is no liability on the part of, and no cause of action of any nature may arise against, any insurer, its officers, its agents, or employees or the director, his designees, or his representatives for any action taken by them in performance of their powers and duties under this chapter.
Article 3
Legal Professional Liability Insurance
Joint Underwriting Association
Section 38-81-210. The General Assembly declares that there exists the potential for a legal professional liability insurance crisis for attorneys in this State because of the high cost of liability insurance and a want of competition. These conditions could result in a situation in which liability insurance would not be available to attorneys in the State. The public interest requires that a contingency program for providing legal professional liability insurance be enacted and that the Insurance Department of South Carolina (department) activate this program upon finding that an emergency exists because insurance is not available through normal channels or is not available on a reasonable basis because of lack of competition or otherwise.
Section 38-81-220. As used in this article:
(1) `Association' means any joint underwriting association established pursuant to this article.
(2) `Legal professional liability insurance' means insurance protection against the legal liability of the insured and against loss, damage, or expense incident to a claim arising out of legal service to or representation of any person as the result of negligence or malpractice in rendering or failing to render professional service.
(3) `Net direct premiums' means gross direct premiums written on bodily injury liability insurance, other than automobile liability insurance, homeowners liability insurance, and farmowners liability insurance, including the liability component of multiple peril package policies, as computed by the director or his designee less return premiums or the unused or unabsorbed portions of premium deposits.
Section 38-81-230. (A) A joint underwriting association is created, consisting of all insurers authorized to write within this State, on a direct basis, bodily injury liability insurance, other than automobile bodily injury liability insurance, homeowners liability insurance, and farmowners liability insurance, including insurers covering such peril in multiple peril package policies. Every such insurer is and must remain a member of the association as a condition of its authority to continue to transact this kind of insurance in this State.
(B) The purpose of the association is to provide legal professional liability insurance on a self-supporting basis to the fullest extent possible.
(C) The association is activated when the department finds and declares the existence of an emergency because of the unavailability of legal professional liability insurance or the unavailability of such insurance on a reasonable basis through normal channels.
Section 38-81-240. The association has the power on behalf of its members to:
(1) issue, or cause to be issued, policies of insurance to applicants including incidental coverages such as, but not limited to, premises or operations liability coverage on the premises where services are rendered, all subject to limits of liability as specified in the plan of operation but not to exceed five million dollars for all claimants under one policy in any one year;
(2) underwrite legal professional liability insurance and to adjust and pay losses with respect thereto or to appoint service companies to perform those functions;
(3) cede and assume reinsurance.
Section 38-81-250. (A) Not less than thirty nor more than ninety days after the effective date of this article the director or his designee, after consultation with the members of the association, representatives of the public, the South Carolina Bar, and other affected individuals and organizations, shall promulgate a plan of operation consistent with this article. The plan of operation becomes effective and operative no later than thirty days after the declaration of an emergency by the department.
(B) The plan of operation shall provide for economic, fair, and nondiscriminatory administration and for the prompt and efficient-provision of legal professional liability insurance and may contain other provisions including, but not limited to, preliminary assessment of all members for initial expenses necessary to commence operations, establishment of necessary facilities, management of the association, assessment of the members to defray losses and expenses, commission arrangements, reasonable and objective underwriting standards, acceptance and cession of reinsurance, appointment of servicing carriers, and procedures for determining amounts of insurance to be provided by the association.
(C) The plan of operation shall provide that any profit achieved by the association must be added to the reserves of the association or returned to the policyholders as a dividend.
(D) Amendments to the plan of operation may be made by the directors of the association with the approval of the director or his designee or must be made at the direction of the director or his designee after proper notice and public hearing.
Section 38-81-260. Upon the activation of the plan of operation, any attorney licensed in this State is entitled to apply to the association for coverage. The application may be made on behalf of the applicant by a licensed agent or broker authorized in writing by the applicant. If the association determines that the applicant meets the underwriting standards of the association as set forth in the approved plan of operation and there is no unpaid, uncontested premium due from the applicant for any prior insurance of the same kind, the association, upon receipt of the premium, or a portion thereof as prescribed by the plan of operation, shall cause to be issued a policy of legal professional liability insurance for a term of one year. The rates, rating plans, rating rules, rating classifications, territories, and policy forms applicable to insurance written by the association and the statistical and experience data relating thereto are subject to this act and to those provisions of Chapter 73, Title 38, Code of Laws of South Carolina, 1976, which are not inconsistent with this article.
Section 38-81-270. The director or his designee shall obtain complete statistical data in respect to legal professional liability losses and reparation costs as well as all other costs or expenses which underlie or are related to legal professional liability insurance. The department shall promulgate any statistical plan he considers necessary for the purpose of gathering data referable to loss and loss adjustment expense experience and other expense experience. When the statistical plan is promulgated all members of the association shall adopt and use it. The director or his designee also shall obtain statistical data in respect to the costs of compensating victims of legal professional liability. The director or his designee may require from any person obtaining insurance through the association loss, claim, or expense data. This information or data is confidential and the attorney-client privilege must be preserved.
Section 38-81-280. In structuring rates for legal professional liability insurance and determining the profit or loss of the association in respect to such insurance, consideration must be given by the director or his designee to all investment income.
Section 38-81-290. Within a time that the director or his designee directs, the association shall submit, for the approval of the director or his designee, an initial filing, in proper form, of policy forms, classifications, rates, rating plans, and rating rules applicable to legal professional liability insurance to be written by the association. If the director or his designee disapproves the initial filing, in whole or in part, the association shall amend the filing, in whole or in part, in accordance with the direction of the director or his designee. If the director or his designee is unable to approve the filing or amended filing, within the time specified, he shall promulgate the policy forms, classifications, rates, rating plans, and rules to be used by the association in making rates for and writing the insurance.
Section 38-81-300. (A) The director or his designee shall specify whether policy forms and the rate structure must be on a `claims-made' or `occurrence' basis and coverage may be provided by the association only on the basis specified by the director or his designee. The director or his designee shall specify the claims-made basis only if the contract makes provision for residual occurrence coverage upon the retirement, death, disability, or removal from the State of the insured. Provision may be made for a premium charge allocable to any residual occurrence coverage and the premium charges for the residual coverage must be segregated and separately maintained for such purpose which may include the reinsurance of all or part of that portion of the risk.
(B) The policy may not contain any limitation in relation to the existing law in tort as provided by the statute of limitations of this State.
(C) The policy form whether on a claims-made or occurrence basis may not require as a condition precedent to settlement or compromise of any claim the consent or acquiescence of the insured. However, such settlement or compromise is not considered an admission of fault or wrongdoing by the insured.
(D) The premium rate charged for either or both claims-made or occurrence coverage must be at rates established on an actuarially sound basis, including consideration of trends in the frequency and severity of losses and must be calculated to be self-supporting.
Section 38-81-310. The association may provide a rate increase or assessment subject to the approval of the director or his designee.
Section 38-81-320. Any deficit sustained by the association in any year must be recouped, pursuant to the plan of operation and the rating plan then in effect, by one or both of the following procedures:
(1) an assessment upon the policyholders, which may not exceed one additional annual premium at the then current rate;
(2) a rate increase applicable prospectively.
Section 38-81-330. After the initial year of operation, rates, rating plans, and rating rules, and any provision for recoupment through policyholder assessment or premium rate increase must be based upon the association's loss and expense experience and investment income, together with any other information based upon this experience and income as the director or his designee considers appropriate. The resultant premium rates must be on an actuarially sound basis and must be calculated to be self-supporting. If sufficient funds are not available for the sound financial operation of the association, pending recoupment as provided in Section 38-81-320, all members, on a temporary basis, shall contribute to the financial requirements of the association in the manner provided for in Section 38-81-340. Any such contribution must be reimbursed to the members following recoupment as provided in Section 38-81-320.
Section 38-81-340. All insurers which are members of the association shall participate in its writings, expenses, profits, and losses in the proportion that the net direct premiums of each member, excluding that portion of premiums attributable to the operation of the association, written during the preceding calendar year bear to the aggregate net direct premiums written in this State by all members of the association. Each insurer's participation in the association must be determined annually on the basis of the net direct premiums written during the preceding calendar year, as reported in the annual statements and other reports filed by the insurer with the department. The assessment of a member insurer, after hearing, may be ordered deferred in whole or in part upon application by the insurer if, in the opinion of the director or his designee, payment of the assessment may render the insurer insolvent or in danger of insolvency or otherwise may leave the insurer in a condition that further transaction of the insurer's business may be hazardous to its policyholders, creditors, members, subscribers, stockholders, or the public. If payment of an assessment against a member insurer is deferred by order of the director or his designee in whole or in part, the amount by which the assessment is deferred must be assessed against other member insurers in the same manner as provided in this section. In the order of deferral or in subsequent orders as may be necessary, the director or his designee shall prescribe a plan by which the assessment deferred must be repaid to the association by the impaired insurer with interest at the six-month treasury bill rate adjusted semiannually. Profits, dividends, or other funds of the association to which the insurer is otherwise entitled may not be distributed to the impaired insurer but must be applied toward repayment of any assessment until the obligation has been satisfied. The association shall distribute the repayments, including interest on them, to the other member insurers on the basis on which assessments were made.
Section 38-81-350. Every member of the association is bound by the approved plan of operation of the association and the rules of the board of directors of the association.
Section 38-81-360. (A) If the authority of an insurer to transact bodily injury liability insurance, other than automobile, homeowners, or farmowners, in this State terminates for any reason, its obligations as a member of the association continue until all its obligations are fulfilled and the director or his designee has so found and certified to the board of directors.
(B) If a member insurer merges into or consolidates with another insurer authorized to transact insurance in this State or another insurer authorized to transact insurance in this State has reinsured the insurer's entire general liability business in this State, both the insurer and its successor or assuming reinsurer, as the case may be, are liable for the insurer's obligations to the association.
(C) Any unsatisfied net liability of any insolvent member of the association must be assumed by and apportioned among the remaining members in the same manner in which assessments or gain and loss are apportioned and the association shall acquire and have all rights and remedies allowed by law in behalf of the remaining members against the estate or funds of the insolvent insurer for funds due the association.
Section 38-81-370. The association is governed by a board of seven directors, one of whom is appointed by the Governor, with the advice and consent of the Senate, to represent the general public and three of whom are members of the South Carolina Bar appointed by the Governor. Three directors are elected by cumulative voting by members of the association, whose votes in the election must be weighed in accordance with each member's net direct premiums written during the preceding calendar year. The approved plan of operation of the association may make provision for combining insurers under common ownership or management into groups for voting, assessment, and all other purposes and may provide that not more than one of the officers or employees of such a group may serve as a director at any one time. The insurer representatives of the board of directors must be elected at a meeting of the members or their authorized representatives, which must be held at a time and place designated by the Director of the Department of Insurance. The Director of the Department of Insurance is chairman of the board of directors, ex officio, and he, or his designee, must preside at all meetings of the board but has no vote except in the case of a tie.
Section 38-81-380. Any applicant for insurance through the association, any person insured pursuant to this article, or his representative, or any insurer adversely affected, or claiming to be adversely affected, by any ruling, action, or decision by or on behalf of the association, may appeal to the director or his designee within thirty days after the ruling, action, or decision.
Section 38-81-390. The association shall file in the office of the department annually by March first a statement containing information with respect to its transactions, condition, operations, and affairs during the preceding year. The statement shall contain information prescribed by the director or his designee and must be in the form he directs. The director or his designee, at any reasonable time, may require the association to furnish additional information concerning its transactions, condition, or any matter connected therewith considered to be material and of assistance in evaluating the scope, operations, and experience of the association.
Section 38-81-400. The director or his designee shall make an examination into the financial condition and affairs of the association at least annually and shall file a report thereon with the department, the Governor, and the General Assembly. The expenses of the examination must be paid by the association."
Name changed
SECTION 833. Chapter 83, Title 38 of the 1976 Code is amended to read:
"CHAPTER 83
Joint Underwriting Association for Writing of
Professional Liability Insurance
Section 38-83-10. As used in this chapter:
(1) `Association' means any joint underwriting association established pursuant to this chapter.
(2) `Professional liability insurance' means insurance protection against the legal liability of the insured and against loss, damage, or expense incident to a claim arising out of service to or representation of any person as the result of negligence or malpractice in rendering or failing to render a professional service.
(3) `Net direct premiums' means gross direct premiums written on bodily injury liability insurance, other than automobile liability insurance, homeowners liability insurance, and farmowners liability insurance, including the liability component of multiple peril package policies, as computed by the director or his designee less return premiums or the unused or unabsorbed portions of premium deposits.
Section 38-83-20. (A) A joint underwriting association is created, consisting of all insurers authorized to write within this State, on a direct basis, bodily injury liability insurance, other than automobile bodily injury liability insurance, homeowners liability insurance, and farmowners liability insurance, including insurers covering such peril in multiple peril package policies. Every such insurer is and must remain a member of the association as a condition of its authority to continue to transact this kind of insurance in this State.
(B) The purpose of the association is to provide professional liability insurance on a self-supporting basis to the fullest extent possible.
(C) The association is activated when the department of Insurance finds and declares the existence of an emergency because of the unavailability of professional liability insurance or the unavailability of such insurance on a reasonable basis through normal channels.
Section 38-83-30. The association has the power on behalf of its members to:
(1) issue, or cause to be issued, policies of insurance to applicants including incidental coverages such as, but not limited to, premises or operations liability coverage on the premises where services are rendered, all subject to limits of liability as specified in the plan of operation but not to exceed five million dollars for all claimants under one policy in any one year;
(2) underwrite professional liability insurance and to adjust and pay losses with respect thereto or to appoint service companies to perform those functions;
(3) cede and assume reinsurance.
Section 38-83-40. (A) Upon application by the members of a professional association seeking creation of a joint underwriting association, the Department of Insurance shall promulgate a plan of operation consistent with this chapter. The plan of operation is operative no later than thirty days after the declaration of an emergency by the Department of Insurance.
(B) The plan of operation shall provide for economic, fair, and nondiscriminatory administration and for the prompt and efficient provision of professional liability insurance and may contain other provisions including, but not limited to, preliminary assessment of all members for initial expenses necessary to commence operations, establishment of necessary facilities, management of the association, assessment of the members to defray losses and expenses, commission arrangements, reasonable and objective underwriting standards, acceptance and cession of reinsurance, appointment of servicing carriers, and procedures for determining amounts of insurance to be provided by the association.
(C) The plan of operation shall provide that any profit achieved by the association must be added to the reserves of the association or returned to the policyholders as a dividend but under no circumstances whatsoever shall any profit be paid over to or received by an insurer either in currency or any other benefit of any kind.
(D) Amendments to the plan of operation may be made by the directors of the association with the approval of the director or his designee or must be made at the direction of the director or his designee after proper notice and public hearing.
Section 38-83-50. Upon the activation of the plan of operation, any professional licensed in this State is entitled to apply to the association for coverage. The application shall be made on behalf of the applicant by a licensed agent or broker authorized in writing by the applicant.
If the association determines that the applicant meets the underwriting standards of the association as set forth in the approved plan of operation and there is no unpaid, uncontested premium due from the applicant for any prior insurance of the same kind, the association, upon receipt of the premium, or a portion thereof as prescribed by the plan of operation, shall cause to be issued a policy of professional liability insurance for a term of one year.
The rates, rating plans, rating rules, rating classifications, territories, and policy forms applicable to insurance written by the association and the statistical and experience data relating thereto are subject to this chapter and to those provisions of Chapter 73, Title 38, Code of Laws of South Carolina, 1976, which are not inconsistent with this chapter.
Section 38-83-60. The director or his designee shall obtain complete statistical data in respect to professional liability losses and reparation costs as well as all other costs or expenses which underlie or are related to professional liability insurance. The Department of Insurance shall promulgate any statistical plan he considers necessary for the purpose of gathering data referable to loss and loss adjustment expense experience and other expense experience. When the statistical plan is promulgated all members of the association shall adopt and use it. The director or his designee also shall obtain statistical data in respect to the costs of compensating victims of professional liability. The director or his designee may require from any person obtaining insurance through the association loss, claim, or expense data.
Section 38-83-70. In structuring rates for professional liability insurance and determining the profit or loss of the association in respect to such insurance, consideration must be given by the director or his designee to all investment income so that investment income is a part of the rate-making and setting process.
Section 38-83-80. Within a time that the director or his designee directs, the association shall submit, for the approval of the director or his designee, an initial filing, in proper form, of policy forms, classifications, rates, rating plans, and rating rules applicable to professional liability insurance to be written by the association. If the director or his designee disapproves the initial filing, in whole or in part, the association shall amend the filing, in whole or in part, in accordance with the direction of the director or his designee. If the director or his designee is unable to approve the filing or amended filing, within the time specified, he shall promulgate the policy forms, classifications, rates, rating plans, and rules to be used by the association in making rates for and writing the insurance.
Section 38-83-90. (A) Policy forms and rate structure must be on an occurrence basis and coverage provided by the association only on that basis.
(B) The policy may not contain any limitation in relation to the existing law in tort as provided by the statute of limitations of this State.
(C) The policy form shall not require as a condition precedent to settlement or compromise of any claim the consent or acquiescence of the insured. However, such settlement or compromise is not considered an admission of fault or wrongdoing by the insured.
(D) The premium rate charged for coverage must be at rates established on an actuarially sound basis, including consideration of trends in the frequency and severity of losses and must be calculated to be self-supporting.
Section 38-83-100. The association may provide a rate increase or assessment subject to the approval of the director or his designee.
Section 38-83-110. Any deficit sustained by the association in any year must be recouped, pursuant to the plan of operation and the rating plan then in effect, by one or both of the following procedures:
(1) an assessment upon the policyholders, which may not exceed one additional annual premium at the then current rate;
(2) a rate increase applicable prospectively.
Section 38-83-120. After the initial year of operation, rates, rating plans, and rating rules, and any provision for recoupment through policyholder assessment or premium rate increase must be based upon the association's loss and expense experience and investment income, together with any other information based upon this experience and income as the director or his designee considers appropriate. The resultant premium rates must be on an actuarially sound basis and must be calculated to be self-supporting.
If sufficient funds are not available for the sound financial operation of the association, pending recoupment as provided in Section 38-83-110, all members, on a temporary basis, shall contribute to the financial requirements of the association in the manner provided for in Section 38-83-130. Any such contribution must be reimbursed to the members following recoupment as provided in Section 38-83-110.
Section 38-83-130. All insurers which are members of the association shall participate in its writings, expenses, and losses in the proportion that the net direct premiums of each member, excluding that portion of premiums attributable to the operation of the association, written during the preceding calendar year bear to the aggregate net direct premiums written in this State by all members of the association. Each insurer's participation in the association must be determined annually on the basis of the net direct premiums written during the preceding calendar year, as reported in the annual statements and other reports filed by the insurer with the Department of Insurance. The assessment of a member insurer, after hearing, may be ordered deferred in whole or in part upon application by the insurer if, in the opinion of the director or his designee, payment of the assessment may render the insurer insolvent or in danger of insolvency or otherwise may leave the insurer in a condition that further transaction of the insurer's business may be hazardous to its policyholders, creditors, members, subscribers, stockholders, or the public. If payment of an assessment against a member insurer is deferred by order of the director or his designee in whole or in part, the amount by which the assessment is deferred must be assessed against other member insurers in the same manner as provided in this section. In the order of deferral or in subsequent orders as may be necessary, the director or his designee shall prescribe a plan by which the assessment deferred must be repaid to the association by the impaired insurer with interest at the six-month treasury bill rate adjusted semiannually. Profits, dividends, or other funds of the association to which the insurer is otherwise entitled may not be distributed to the impaired insurer but must be applied toward repayment of any assessment until the obligation has been satisfied. The association shall distribute the repayments, including interest on them, to the other member insurers on the basis on which assessments were made.
Section 38-83-140. Every member of the association is bound by the approved plan of operation of the association and the rules of the board of directors of the association.
Section 38-83-150. (A) If the authority of an insurer to transact bodily injury liability insurance, other than automobile, homeowners, or farmowners, in this State terminates for any reason, its obligations as a member of the association continue until all its obligations are fulfilled and the director or his designee has so found and certified to the board of directors.
(B) If a member insurer merges into or consolidates with another insurer authorized to transact insurance in this State or another insurer authorized to transact insurance in this State has reinsured the insurer's entire general liability business in this State, both the insurer and its successor or assuming reinsurer, as the case may be, are liable for the insurer's obligations to the association.
(C) Any unsatisfied net liability of any insolvent member of the association must be assumed by and apportioned among the remaining members in the same manner in which assessments or gain and loss are apportioned and the association shall acquire and have all rights and remedies allowed by law in behalf of the remaining members against the estate or funds of the insolvent insurer for funds due the association.
Section 38-83-160. Each joint underwriting association is governed by a board of seven directors, one of whom is appointed by the Governor to represent the general public and four of whom are appointed by the Governor and represent professionals covered under the association. Two directors are the Chairman of the Labor, Commerce and Industry Committee of the House of Representatives or his designee and the Chairman of the Banking and Insurance Committee of the Senate or his designee, both of whom shall serve ex officio. The approved plan of operation of the association may make provision for combining insurers under common ownership or management into groups for voting, assessment, and all other purposes and may provide that not more than one of the officers or employees of such a group may serve as a director at any one time. The Director of the Department of Insurance is chairman of the board of directors, ex officio, and he, or his designee, must preside at all meetings of the board but has no vote except in the case of a tie.
Section 38-83-170. Any applicant for insurance through the association, any person insured pursuant to this chapter, or his representative, or any insurer adversely affected, or claiming to be adversely affected, by any ruling, action, or decision by or on behalf of the association, may appeal to the director or his designee within thirty days after the ruling, action, or decision.
Section 38-83-180. The association shall file in the office of the Department of Insurance annually by March first a statement containing information with respect to its transactions, condition, operations, and affairs during the preceding year. The statement shall contain information prescribed by the director or his designee and must be in the form he directs.
The director or his designee, at any reasonable time, may require the association to furnish additional information concerning its transactions, condition, or any matter connected therewith considered to be material and of assistance in evaluating the scope, operations, and experience of the association.
Section 38-83-190. The director or his designee shall make an examination into the financial condition and affairs of the association at least annually and shall file a report thereon with the Department of Insurance, the Governor, and the General Assembly. The expenses of the examination must be paid by the association."
Name changed
SECTION 834. Section 38-85-70 of the 1976 Code is amended to read:
"Section 38-85-70. No group policy or group certificate of mortgage insurance used in connection with a consolidation, nor any application, endorsement, or rider which becomes a part of any such group policy or certificate, may be issued or delivered in this State until a copy of the form has been filed with and approved by the director or his designee."
Name changed
SECTION 835. Section 38-85-80 of the 1976 Code is amended to read:
"Section 38-85-80. The department is authorized to promulgate regulations to implement this chapter."
Name changed, defined; powers of director
SECTION 836. Subsection (1) of Section 38-87-20 of the 1976 Code is amended to read:
"(1) `Commissioner' means the commissioner, director, or superintendent of insurance in a state. Director means the person who is appointed by the Governor upon the advice and consent of the Senate and who is responsible for the operation and management of the South Carolina Department of Insurance, including all of its divisions. The director may appoint or designate the person or persons who shall serve at the pleasure of the director to carry out the objectives or duties of the department as provided by law. Furthermore, the director may bestow upon his designee or deputy director any duty or function required of him by law in managing or supervising the Insurance Department."
Provisions re-enacted without change
SECTION 837. Section 38-87-20(8)(h) of the 1976 Code of Laws is amended to read:
"(h) such other matters as may be prescribed by the commissioner of the state in which the risk retention group is chartered for liability insurance companies authorized by the insurance laws of that state;"
Provisions re-enacted without change
SECTION 838. Section 38-87-20(11)(c)(ii) of the 1976 Code of Laws is amended to read:
"(ii) before January 1, 1985, was chartered or licensed and authorized to engage in the business of insurance under the laws of Bermuda or the Cayman Islands and, before such date, had certified to the insurance commissioner of at least one state that it satisfied the capitalization requirements of such state, except that any such group must be considered to be a risk retention group only if it has been engaged in business continuously since such date and only for the purpose of continuing to provide insurance to cover product liability or completed operations liability (as such terms were defined in the Product Liability Risk Retention Act of 1981 before the date of the enactment of the Liability Risk Retention Act of 1986);"
Name changed
SECTION 839. Section 38-87-30 of the 1976 Code of Laws is amended to read:
"Section 38-87-30. (A) A risk retention group must, pursuant to the provisions of this title, be chartered and licensed to write only liability insurance under this chapter and, except as provided elsewhere in this chapter, shall comply with all of the laws, regulations, and requirements applicable to such insurers chartered and licensed in this State and with Section 38-87-40 to the extent such requirements are not a limitation on laws, regulations, or requirements of this State.
(B) Before it may offer insurance in any state, each risk retention group chartered in this State shall submit for approval to the director or his designee of this State a plan of operation or feasibility study. The risk retention group shall submit an appropriate revision in the event of any subsequent material change in any item of the plan of operation or feasibility study, within ten days of any such change. The group may not offer any additional kinds of liability insurance, in this State or in any other state, until a revision of such plan or study is approved by the director or his designee.
(C) At the time of filing its application for charter, the risk retention group shall provide to the director or his designee in summary form the following information: the identity of the initial members of the group, the identity of those individuals who organized the group or who will provide administrative services or otherwise influence or control the activities of the group, the amount and nature of initial capitalization, the coverages to be afforded, and the states in which the group intends to operate. Upon receipt of this information, the director or his designee may forward such information to the National Association of Insurance Commissioners. Providing notification to the National Association of Insurance Commissioners is in addition to, and is not sufficient to satisfy, the requirements of Section 38-87-40 or any other provision of this chapter."
Name changed
SECTION 840. Section 38-87-40 of the 1976 Code of Laws is amended to read:
"Section 38-87-40. Section 38-87-40. Risk retention groups chartered and licensed in states other than this State and seeking to do business as a risk retention group in this State shall comply with the laws of this State as follows:
(1) Notice of Operations and Designation of director or his designee as Agent.
(a) Before offering insurance in this State, a risk retention group shall submit to the director or his designee:
(i) a statement identifying the state or states in which the risk retention group is chartered and licensed as a liability insurance company, charter date, its principal place of business, and such other information, including information on its membership, as the director or his designee of this State may require to verify that the risk retention group is qualified under Section 38-87-20(11);
(ii) a copy of its plan of operations or feasibility study and revisions of such plan or study submitted to the state in which the risk retention group is chartered and licensed; however, the provision relating to the submission of a plan of operation or feasibility study does not apply with respect to any line or classification of liability insurance which: (A) was defined in the Product Liability Risk Retention Act of 1981 before October 27, 1986; and (B) was offered before such date by any risk retention group which had been chartered and operating for not less than three years before such date.
(b) The risk retention group shall submit a copy of any revision to its plan of operation or feasibility study required by Section 38-87-30(B) at the same time that such revision is submitted to the commissioner of its chartering state.
(c) A statement of registration and a notice designating the commissioner as agent for the purpose of receiving service of legal documents or process must be submitted on such forms as the director or his designee may prescribe or approve.
(d) Annual license fees, equal to the license fees required of an admitted liability insurer licensed to transact business in this State, must be paid in this State.
(2) Financial Condition. Any risk retention group doing business in this State shall submit to the director or his designee:
(a) a copy of the group's financial statement submitted to the state in which the risk retention group is chartered and licensed which must be certified by an independent public accountant and shall contain a statement of opinion on loss and loss adjustment expense reserves made by a member of the American Academy of Actuaries or a loss reserve specialist qualified under such criteria as the director or his designee may prescribe or approve;
(b) a copy of each examination of the risk retention group as certified by the commissioner of its chartering state or other public official conducting the examination;
(c) upon request by the director or his designee, a copy of any information or document pertaining to any outside audit performed with respect to the risk retention group;
(d) such information as may be required to verify its continuing qualification as a risk retention group under Section 38-87-20(11).
(3) Taxation. (a) Each risk retention group is liable for the payment of premium taxes and taxes on premiums of direct business for risks resident or located within this State and shall report to the director or his designee the net premiums written for risks resident or located within this State. Such risk retention group is subject to taxation, including any applicable fines and penalties related thereto, on the same basis as a foreign admitted insurer.
(b) To the extent licensed agents or brokers are utilized pursuant to Section 38-87-120, they shall report to the department the premiums for direct business for risks resident or located within this State which such licensees have placed with or on behalf of a risk retention group not chartered in this State.
(c) To the extent that insurance agents or brokers are utilized pursuant to Section 38-87-120, such agent or broker shall keep a complete and separate record of all policies procured from each such risk retention group, which record must be open to examination by the director or his designee or his representative on demand. These records shall, for each policy and each kind of insurance provided thereunder, include the following:
(i) the limit of liability;
(ii) the time period covered;
(iii) the effective date;
(iv) the name of the risk retention group which issued the policy;
(v) the gross premium charged;
(vi) the amount of return premiums, if any;
(vii) such additional information as the director or his designee may require.
(4) Compliance with Claims Settlement Practices Laws. Every risk retention group, its agents, and its representatives shall comply with the claims settlement practices laws of this State, including, but not limited to, Section 38-57-70, Chapter 59 of Title 38, and such other provisions relative to claims settlement practices required by law.
(5) Deceptive, False, or Fraudulent Practices. Every risk retention group shall comply with the laws of this State regarding deceptive, false, or fraudulent acts or practices, including, but not limited to, Chapter 57 of this title and such other provisions relative to deceptive, false, or fraudulent practices required by law.
(6) Examination Regarding Financial Condition. A risk retention group shall submit to an examination by the director or his designee to determine its financial condition if the director or his designee of the jurisdiction in which the group is chartered and licensed has not initiated an examination or does not initiate an examination within sixty days after a request by the director or his designee of this State. The examination must be coordinated to avoid unjustified repetition and must be conducted in an expeditious manner and in accordance with the National Association of Insurance Commissioners' Examiner's Handbook.
(7) Notice to Purchasers. Every application form for insurance from a risk retention group, and every policy (on its front and declaration pages) issued by a risk retention group, must contain in ten point type the following notice:
NOTICE
This policy is issued by your risk retention group. Your risk retention group may not be subject to all of the insurance laws and regulations of your state. State insurance insolvency guaranty funds are not available for your risk retention group.
(8) Prohibited Acts Regarding Solicitation or Sale. The following acts by a risk retention group are prohibited:
(a) the solicitation or sale of insurance by a risk retention group to any person who is not eligible for membership in the group;
(b) the solicitation or sale of insurance by, or operation of, a risk retention group that is in hazardous financial condition or financially impaired.
(9) Prohibition on Ownership by an Insurance Company. No risk retention group is allowed to do business in this State if an insurance company is directly or indirectly a member or owner of such risk retention group, other than in the case of a risk retention group all of whose members are insurance companies.
(10) Prohibited Coverage. The terms of any insurance policy issued by any risk retention group may not provide, or be construed to provide, coverage prohibited generally by statute of this State or declared unlawful by the Supreme Court of South Carolina.
(11) Delinquency Proceedings. A risk retention group not chartered in this State and doing business in this State shall comply with a lawful order issued in a voluntary dissolution proceeding or in a delinquency proceeding commenced by a state insurance commissioner if there has been a finding of financial impairment after an examination under Section 38-87-40(6).
(12) Penalties. A risk retention group that violates any provision of this chapter is subject to fines and any other penalties, including revocation of its right to do business in this State, applicable to licensed insurers generally.
(13) Operation Prior to Enactment of this Chapter. In addition to complying with the requirements of this section, any risk retention group operating in this State prior to enactment of this chapter shall comply within thirty days after the effective date of this chapter with the provisions of item (1)(a) of this section."
Name changed
SECTION 841. Subsection (D) of Section 38-87-50 of the 1976 Code is amended to read:
"(D) The director or his designee may require a risk retention group to participate in any mechanism established or authorized under the law of this State for the equitable apportionment among insurers of liability insurance losses and expenses incurred on policies written through such mechanism, and such risk retention group shall submit sufficient information to the department to enable him to apportion on a nondiscriminatory basis the risk retention group's proportionate share of such losses and expenses."
Name changed; etc.
SECTION 842. Section 38-87-80 of the 1976 Code is amended to read:
"Section 38-87-80. (A) A purchasing group prior to doing business in this State shall furnish notice to the department, on forms prescribed or approved by it, which shall:
(1) identify the state in which the group is domiciled;
(2) identify all other states in which the group intends to do business;
(3) specify the lines and classifications of liability insurance which the purchasing group intends to purchase;
(4) identify the insurance company from which the group intends to purchase its insurance and the domicile of such company;
(5) specify the method by which, and the person, if any, through whom insurance will be offered to its members whose risks are resident or located in this State;
(6) identify the principal place of business of the group;
(7) provide other information as may be required by the director or his designee to verify that the purchasing group is qualified under Section 38-87-20(10).
(B) A purchasing group shall notify, within ten days, the director or his designee of any changes in any of the items set forth in subsection (A) of this section.
(C) The purchasing group shall register with the department and designate the Director of the Department of Insurance as its agent solely for the purpose of receiving service of legal documents or process, except that such requirements do not apply in the case of a purchasing group which satisfies the director or his designee that it only purchases insurance that was authorized under the Federal Products Liability Risk Retention Act of 1981, and:
(1) that in any state of the United States (a) it was domiciled before April 1, 1986; and (b) it is domiciled on and after October 27, 1986;
(2) that (a) before October 27, 1986, it purchased insurance from an insurance carrier licensed in any state; and (b) since October 27, 1986, it purchased its insurance from an insurance carrier licensed in any state; or
(3) that it was a purchasing group under the requirements of the Product Liability Risk Retention Act of 1981 before October 27, 1986.
(D) Each purchasing group that is required to give notice pursuant to subsection (A) of this section also shall furnish such information as may be required by the director or his designee to:
(1) verify that the entity qualifies as a purchasing group;
(2) determine where the purchasing group is located;
(3) determine appropriate tax treatment."
Name changed
SECTION 843. Section 38-87-110 of the 1976 Code is amended to read:
"Section 38-87-110. (A) The director or his designee is authorized to use any power established under this title to enforce the insurance laws of this State not specifically preempted by the Liability Risk Retention Act of 1986, including, but without limitation, the administrative authority of the director or his designee to investigate, issue subpoenas, conduct depositions and hearings, issue orders, impose monetary penalties, and seek injunctive relief. With regard to any investigation, administrative proceedings, or litigation, the director or his designee may rely on the procedural laws of this State.
(B) Whenever the director or his designee determines that any person, risk retention group, purchasing group, or insurer of a purchasing group has violated, is violating, or is about to violate any provision of this chapter or any other insurance law of this State applicable to such person or entity, or has failed to comply with a lawful order of his, he may, in addition to any other lawful remedies or penalties, cause a complaint to be filed in the Court of Common Pleas for Richland County to enjoin and restrain such person, risk retention group, purchasing group, or insurer from engaging in such violation, or to compel compliance with such order of the director or his designee. The court has jurisdiction of the proceeding and has the power to enter a judgment and order for injunctive or other relief. In any action by the director or his designee under this subsection, service of process must be made upon the Secretary of State, who shall forward the order, pleadings, or other process to the person, risk retention group, purchasing group, or insurer in accordance with the procedures specified in Section 38-25-510. Nothing herein may be construed to limit or abridge the authority of the director or his designee to seek injunctive relief in any district court of the United States as provided in Section 38-87-130."
Name changed; etc.
SECTION 844. Section 38-87-140 of the 1976 Code is amended to read:
"Section 38-87-140. The department may promulgate regulations considers necessary to carry out the provisions of this chapter."
Name changed
SECTION 845. Chapter 89, Title 38 of the 1976 Code is amended to read:
"CHAPTER 89
Day Care Joint Underwriting Association
Section 38-89-10. As used in this chapter:
(1) `Association' means a joint underwriting association established pursuant to this subdivision.
(2) `Day care liability insurance' means insurance protection against the day care liability of the insured and against loss, damage, or expense incident to a claim arising out of day care service to a person as the result of negligence in rendering or failing to render day care service.
(3) `Net direct premiums' means gross direct premiums written on bodily injury liability insurance, other than automobile liability insurance, homeowners liability insurance, and farmowners liability insurance, including the liability component of multiple peril package policies, as computed by the director or his designee less return premiums or the unused or unabsorbed portions of premium deposits.
Section 38-89-20. (A) A joint underwriting association is created, consisting of all insurers authorized to write within this State, on a direct basis, bodily injury liability insurance, other than automobile bodily injury liability insurance, homeowners liability insurance, and farmowners liability insurance, including insurers covering such peril in multiple peril package policies. Every such insurer is and must remain a member of the association as a condition of its authority to continue to transact this kind of insurance in this State.
(B) The purpose of the association is to provide day care liability insurance on a self-supporting basis to the fullest extent possible.
(C) The association is activated when the Department of Insurance finds and declares the existence of an emergency because of the unavailability of day care liability insurance or the unavailability of such insurance on a reasonable basis through normal channels.
Section 38-89-30. The association has the power on behalf of its members to:
(1) issue, or cause to be issued, policies of insurance to applicants including incidental coverages such as, but not limited to, premises or operations liability coverage on the premises where services are rendered, all subject to limits of liability as specified in the plan of operation but not to exceed five million dollars for all claimants under one policy in any one year;
(2) underwrite day care liability insurance and to adjust and pay losses with respect thereto or to appoint service companies to perform those functions;
(3) cede and assume reinsurance.
Section 38-89-40. (A) Not less than thirty nor more than ninety days after the effective date of this subdivision the director or his designee, after consultation with representatives of the public, day care owners and operators, and other affected individuals and organizations, shall promulgate a plan of operation consistent with this chapter. The plan of operation becomes effective and operative no later than thirty days after the declaration of an emergency by the department.
(B) The plan of operation shall provide for economic, fair, and nondiscriminatory administration and for the prompt and efficient provision of day care liability insurance and may contain other provisions including, but not limited to, preliminary assessment of all members for initial expenses necessary to commence operations, establishment of necessary facilities, management of the association, assessment of the members to defray losses and expenses, commission arrangements, reasonable and objective underwriting standards, acceptance and cession of reinsurance, appointment of servicing carriers, and procedures for determining amounts of insurance to be provided by the association.
(C) The plan of operation shall provide that any profit achieved by the association must be added to the reserves of the association or returned to the policyholders as a dividend.
(D) Amendments to the plan of operation may be made by the directors of the association with the approval of the director or his designee or must be made at the direction of the director or his designee after proper notice and public hearing.
Section 38-89-50. Upon the activation of the plan of operation, a day care owner or operator licensed in this State is entitled to apply to the association for coverage. The application may be made on behalf of the applicant by a licensed agent or broker authorized in writing by the applicant. If the association determines that the applicant meets the underwriting standards of the association as set forth in the approved plan of operation and there is no unpaid, uncontested premium due from the applicant for any prior insurance of the same kind, the association, upon receipt of the premium, or a portion of it as prescribed by the plan of operation, shall cause to be issued a policy of day care liability insurance for one year. The rates, rating plans, rating rules, rating classifications, territories, and policy forms applicable to insurance written by the association and the statistical and experience data relating thereto are subject to this chapter and to those provisions of Chapter 73, Title 38 of the 1976 Code which are not inconsistent with this subdivision.
Section 38-89-60. The director or his designee shall obtain complete statistical data in respect to day care liability losses and reparation costs as well as all other costs or expenses which underlie or are related to day care liability insurance. The Department of Insurance shall promulgate any statistical plan he considers necessary for the purpose of gathering data referable to loss and loss adjustment expense experience and other expense experience. When the statistical plan is promulgated all members of the association shall adopt and use it. The director or his designee also shall obtain statistical data in respect to the costs of compensating victims of day care liability. The director or his designee may require loss, claim, or expense data from any person obtaining insurance through the association. This information or data is confidential.
Section 38-89-70. In structuring rates for day care liability insurance and determining the profit or loss of the association in respect to the insurance, consideration must be given by the director or his designee to all investment income.
Section 38-89-80. Within a time that the director or his designee directs, the association shall submit, for the approval of the director or his designee, an initial filing, in proper form, of policy forms, classifications, rates, rating plans, and rating rules applicable to day care liability insurance to be written by the association. If the director or his designee disapproves the initial filing, in whole or in part, the association shall amend the filing, in whole or in part, in accordance with the direction of the director or his designee. If the director or his designee is unable to approve the filing or amended filing, within the time specified, he shall promulgate the policy forms, classifications, rates, rating plans, and rules to be used by the association in making rates for and writing the insurance.
Section 38-89-90. (A) The director or his designee shall specify whether policy forms and the rate structure must be on a `claims-made' or `occurrence' basis, and coverage may be provided by the association only on the basis specified by the director or his designee. The director or his designee shall specify the claims-made basis only if the contract makes provision for residual occurrence coverage upon the retirement, death, disability, or removal from the State of the insured. Provision may be made for a premium charge allocable to any residual occurrence coverage, and the premium charges for the residual coverage must be segregated and separately maintained for such purpose which may include the reinsurance of all or part of that portion of the risk.
(B) The policy may not contain a limitation in relation to the existing law in tort as provided by the statute of limitations of this State.
(C) The policy form, whether on a claims-made or occurrence basis, may not require as a condition precedent to settlement or compromise of a claim the consent or acquiescence of the insured. However, the settlement or compromise is not considered an admission of fault or wrongdoing by the insured.
(D) The premium rate charged for either or both claims-made or occurrence coverage must be at rates established on an actuarially sound basis, including consideration of trends in the frequency and severity of losses and must be calculated to be self-supporting.
Section 38-89-100. The association may provide a rate increase or assessment subject to the approval director or his designee.
Section 38-89-110. A deficit sustained by the association in a year must be recouped, pursuant to the plan of operation and the rating plan then in effect, by one or both of the following procedures:
(1) an assessment upon the policyholders, which may not exceed one additional annual premium at the then current rate;
(2) a rate increase applicable prospectively.
Section 38-89-120. After the initial year of operation, rates, rating plans, and rating rules, and any provision for recoupment through policyholder assessment or premium rate increase must be based upon the association's loss and expense experience and investment income, together with any other information based upon this experience and income as the director or his designee considers appropriate. The resultant premium rates must be on an actuarially sound basis and must be calculated to be self-supporting. If sufficient funds are not available for the sound financial operation of the association, pending recoupment as provided in Section 38-89-110, all members, on a temporary basis, shall contribute to the financial requirements of the association in the manner provided in Section 38-89-130. A contribution must be reimbursed to the members following recoupment as provided in Section 38-89-110.
Section 38-89-130. All insurers which are members of the association shall participate in its writings, expenses, profits, and losses in the proportion that the net direct premium of each member, excluding that portion of premiums attributable to the operation of the association, written during the preceding calendar year bear to the aggregate net direct premiums written in this State by all members of the association. Each insurer's participation in the association must be determined annually on the basis of the net direct premiums written during the preceding calendar year, as reported in the annual statements and other reports filed by the insurer with the department of Insurance. No member may be obligated in any one year to reimburse the association because of its proportionate share in the deficit from operations of the association in that year in excess of one percent of its surplus to policyholders and the aggregate amount not so reimbursed must be reallocated among the remaining members in accordance with the method of determining participation prescribed in this subsection after excluding from the computation the total net direct premiums of all members not sharing in the excess deficit. If the deficit from operations allocated to all members of the association in a calendar year exceeds one percent of their respective surplus to policyholders, the amount of the deficit must be allocated to each member in accordance with the method of determining participation prescribed in this subsection.
Section 38-89-140. Every member of the association is bound by the approved plan of operation of the association and the rules of the board of directors of the association.
Section 38-89-150. (A) If the authority of an insurer to transact bodily injury liability insurance, other than automobile, homeowners, or farmowners, in this State terminates for any reason, its obligations as a member of the association continue until all its obligations are fulfilled and the director or his designee has so found and certified to the board of directors.
(B) If a member insurer merges into or consolidates with another insurer authorized to transact insurance in this State or another insurer authorized to transact insurance in this State has reinsured the insurer's entire general liability business in this State, both the insurer and its successor or assuming reinsurer, as the case may be, are liable for the insurer's obligations to the association.
(C) An unsatisfied net liability of an insolvent member of the association must be assumed by and apportioned among the remaining members in the same manner in which assessments or gain and loss are apportioned and the association shall acquire and have all rights and remedies allowed by law in behalf of the remaining members against the estate or funds of the insolvent insurer for funds due the association.
Section 38-89-160. The association is governed by a board of seven directors, one of whom is appointed by the Governor, with the advice and consent of the Senate, to represent the general public and three of whom are day care owners or operators appointed by the Governor. Three directors are elected by cumulative voting by members of the association, whose votes in the election must be weighed in accordance with each member's net direct premiums written during the preceding calendar year. The approved plan of operation of the association may make provision for combining insurers under common ownership or management into groups for voting, assessment, and all other purposes and may provide that not more than one of the officers or employees of the group may serve as a director at any one time. The insurer representatives of the board of directors must be elected at a meeting of the members or their authorized representatives, which must be held at a time and place designated by the director of the department. The director of the department is chairman of the board of directors, ex officio, and he, or his designee, must preside at all meetings of the board but has no vote except in the case of a tie.
Section 38-89-170. An applicant for insurance through the association, a person insured pursuant to this chapter, or his representative, or an insurer adversely affected, or claiming to be adversely affected, by a ruling, action, or decision by or on behalf of the association, may appeal to the director or his designee within thirty days after the ruling, action, or decision.
Section 38-89-180. The association shall file in the office of the Department of Insurance annually by March first a statement containing information with respect to its transactions, condition, operations, and affairs during the preceding year. The statement must contain information prescribed by the director or his designee and must be in the form he directs.
The director or his designee, at any reasonable time,
may require the association to furnish additional information concerning its transactions, condition, or any matter connected therewith considered to be material and of assistance in evaluating the scope, operations, and experience of the association.
Section 38-89-190. The director or his designee shall make an examination into the financial condition and affairs of the association at least annually and shall file a report thereon with the department, the Governor, and the General Assembly. The expenses of the examination must be paid by the association."
References revised
SECTION 846. Section 39-9-230 of the 1976 Code is amended to read:
"Section 39-9-230. The Commissioner of Agriculture shall have general advisory authority over the implementation of the metric system in this State. To assist in such implementation there is hereby created a nine member advisory committee including the executive officers or their designated staff member from the State Law Enforcement Division, the Commission on Higher Education, the State Board for Technical and Comprehensive Education, the Department of Education, the Department of Transportation, Department of Public Safety, the Department of Commerce, one member appointed by the Governor who is associated with the textile industry and shall serve without compensation, and one member appointed by the Governor from his staff. If any designated member ceases to be on the staff of any of the above-mentioned state agencies he shall no longer be a member of the advisory committee and the executive officer shall serve or designate another member of his staff to serve on the committee. Members of the committee shall serve until such time as the provisions of this section and Section 39-9-240 have been fully implemented. The Commissioner of Agriculture, with the assistance and recommendations of the committee, shall:
(1) formulate a suggested program as may be necessary to plan for the gradual implementation in the commerce of this State to the metric system;
(2) provide to the General Assembly recommendations for achieving conversion of units of measurement as used in this State to the metric system;
(3) encourage all state departments, divisions, agencies, boards and commissions having any authority or responsibility in matters concerning standards of weights and measurement to initiate planning for the gradual conversion to and implementation of the metric system of weights and measures of this State."
Reference revised
SECTION 847. Section 39-15-170 of the 1976 Code is amended to read:
"Section 39-15-170. Any mark or name used to advertise the chemical or other contents of food products grown in this State or other articles shall not be sold, bartered or exchanged by any person except through and by the Director of the Department of Commerce. The director is entrusted with handling by selling, or otherwise, any mark used for the purpose set forth in this section and may use under its direction any officer of the state for the purpose of handling such mark. Any person violating the provisions of this section shall, upon conviction, be subject to a fine or imprisonment, in the discretion of the court."
Reference revised
SECTION 848. Section 39-41-40 of the 1976 Code is amended to read:
"Section 39-41-40. The Department of Public Safety, through the facilities of the motor vehicle division, South Carolina Highway Patrol and law enforcement agents may, upon the request of the Commissioner of Agriculture, assist in the enforcement of all laws relating to the inspection of petroleum products."
Reference revised
SECTION 849. Section 39-57-20 of the 1976 Code is amended to read:
"Section 39-57-20. As used in this chapter `business opportunity' means the sale or lease of any products, equipment, supplies, or services which are sold to the purchaser for the purpose of enabling the purchaser to start a business, for which the purchaser is required to pay the seller a fee which exceeds two hundred fifty dollars, and in which the seller represents:
(1) that he will provide locations or assist the purchaser in finding locations for the use or operation of vending machines, racks, display cases or other similar devices, or currency-operated amusement machines or devices, on premises neither owned nor leased by the purchaser or seller; or
(2) that he will purchase any or all products made, produced, fabricated, grown, bred, or modified by the purchaser using in whole or in part, the supplies, services, or chattels sold to the purchaser; or
(3) that he guarantees that the purchaser will derive income from the business opportunity which exceeds the price paid for the business opportunity; or that he will refund all or part of the price paid for the business opportunity, or repurchase any of the products, equipment, supplies, or chattels supplied by the seller, if the purchaser is unsatisfied with the business opportunity; or
(4) the seller will provide a sales program or marketing program which will enable the purchaser to derive income from the business opportunity which exceeds the price paid for the business opportunity; provided, that this subsection does not apply to the sale or a marketing program made in conjunction with the licensing of a registered trademark or service mark.
`Business opportunity' does not include the sale of ongoing businesses when the owner of those businesses sells or intends to sell any portion thereof; provided, a business is not considered an ongoing business unless it has filed income tax returns with the South Carolina Department of Revenue and Taxation for at least one year; nor does it include the sale of assets or substantially all of the assets of an ongoing business; nor does it include payment for the not-for-profit sale of sales demonstration equipment, material or samples, or where the payment is made for product inventory sold to the purchaser at a bona fide wholesale price; nor does it include the sale or lease of any products, equipment, supplies, or services where the seller has a net worth on a consolidated basis, according to its most recent audited financial statement, of not less than ten million dollars."
Board may prescribe rules
SECTION 850. Section 40-1-140 of the 1976 Code is amended to read:
"Section 40-1-140. The board may prescribe rules, regulations and bylaws, in harmony with the provisions of this chapter, for its own proceedings and government and for the examination of applicants for the practice of accounting. The board may promulgate and amend rules of professional conduct appropriate to establish and maintain a high standard of integrity and dignity in the profession of public accountancy. Within sixty days after the promulgation of any such rule or amendment, the board shall mail copies of the rule or amendment to each holder of a license issued under this article, with a notice advising him of the effective date of the rule or amendment. Failure to mail such rule, amendment or notice to all license holders shall not affect the validity of any such rule or amendment. The board, or any member thereof, may issue subpoenas to compel the attendance of witnesses and the production of documents, and may administer oaths, take testimony, hear proofs and receive exhibits in evidence for all purposes required in the discharge of its duties. In case of disobedience to a subpoena the board may invoke the aid of an administrative law judge as provided under Article 5 of Chapter 23 of Title 1 in requiring the attendance and testimony of witnesses and the production of documentary evidence and shall adopt a seal to be affixed to all its official documents."
Board to conduct proceedings
SECTION 851. Section 40-1-310 of the 1976 Code is amended to read:
"Section 40-1-310. (a) The board may initiate proceedings under this article either on its own motion or on the complaint of any person.
(b) A written notice, stating the nature of the charge against the accused and the time and place of the hearing before the board on such charge, shall be served on the accused not less than thirty days prior to the date of the hearing, either personally or by mailing a copy thereof by registered mail to the address of the accused last known to the board.
(c) If, after having been served with the notice of hearing as provided for herein, the accused fails to appear at the hearing and defend, the board may proceed to hear evidence against him and may enter such order as shall be justified by the evidence, which order shall be final unless the accused petitions for a review thereof as provided herein; provided, however, that within thirty days from the date of any order, upon showing of good cause for failing to appear and defend, the board may reopen the proceedings and may permit the accused to submit evidence in his behalf.
(d) At any hearing the accused may appear in person and by counsel produce evidence and witnesses on his own behalf, cross-examine witnesses, and examine such evidence as may be produced against him. The accused shall be entitled, on application to the board, to the issuance of subpoenas to compel the attendance of witnesses on his behalf.
(e) The board shall not be bound by technical rules of evidence.
(f) A record of the hearings shall be kept and filed with the board.
(g) At all hearings the Attorney General of this State, or one of his assistants designated by him, or such other legal counsel as may be employed, shall appear and represent the board.
(h) The decision of the board shall be by majority vote thereof, except a decision to revoke the permit must be by unanimous vote of those voting.
(i) Anyone adversely affected by any order of the board may obtain a review thereof by filing a written petition for review with an administrative law judge as provided under Article 5 of Chapter 23 of Title 1 within thirty days after the entry of the order. The petition shall state the grounds upon which the review is asked. A copy of such petition shall be forthwith served upon any member of the board and thereupon the board shall certify and file with the administrative law judge as provided under Article 5 of Chapter 23 of Title 1 a copy of the record upon which the order complained of was entered. The administrative law judge as provided under Article 5 of Chapter 23 of Title 1 may, in its discretion, stay the effect of the board's order pending its determination of the case."
Board may file suit
SECTION 852. Section 40-1-350 of the 1976 Code is amended to read:
"Section 40-1-350. As cumulative of any other remedy or criminal prosecution, whenever it shall appear to the board that any person violated any of the provisions of this article, or the lawful rules, regulations or orders of the board, or any of the laws of this State relating to accountancy, the board may file a suit in equity in its own name, or in the name of the state, on its own relation, and by its counsel, with an administrative law judge as provided under Article 5 of Chapter 23 of Title 1 alleging the facts and praying for a temporary restraining order or permanent injunction against such person, restraining him from violating such law, order, rule or regulation, or commanding him to obey such law, order, rule or regulation.
Upon proper application, and showing that such person is not registered, or that a renewal certificate has not been applied for, or that registration has been denied, revoked or suspended, or that the law, order, rule or regulation has been or is about to be violated or disobeyed, which showing may be made by affidavit, the administrative law judge as provided under Article 5 of Chapter 23 of Title 1 shall issue a temporary restraining order or injunction, and, upon final hearing, shall grant and issue an injunction, including mandatory injunction, upon finding the truth and sufficiency of the allegations of the petition. An administrative law judge, as provided under Article 5 of Chapter 23 of Title 1, may enforce the injunction by punishment for contempt, and by such other process as is permitted to circuit courts, and shall make such other orders as its discretion and the rules shall require. Such injunction may be limited in time, perpetual or conditional, as may be necessary and proper to the enforcement of this article, or the lawful rules, regulations or orders of the board, or the law of this State relating to accountancy."
Compensation of members of the board
SECTION 853. Section 40-3-40 of the 1976 Code is amended to read:
"Section 40-3-40. The members of the board must be compensated for their services at the regular per diem rate established by the General Assembly for other state boards and must be reimbursed for actual and necessary expenses incurred in connection with and as a result of their work as members of the board. All costs and expenses may be paid only from the fees and dues received and no claim may be made upon the State Treasury under this chapter."
Investigation by the board
SECTION 854. Section 40-3-120 of the 1976 Code is amended to read:
"Section 40-3-120. Whenever the board has reason to believe that any registrant has become unfit to practice architecture or has violated any of the provisions of this chapter or regulation of the board, or whenever a written complaint charging the holder of a registration certificate with the violation of any provision of this chapter is filed with the board, the board shall initiate an investigation within thirty days. If after investigation it appears that probable cause exists for a hearing, a time and place must be set by the board for a hearing to determine whether or not the registration must be suspended or revoked or other disciplinary action taken. No action may be taken by the board until the registrant has been furnished with a statement of the charges against him and by whom he is charged and the names and addresses of all witnesses against him and a notice of the time and place of the hearing on the charges pursuant to the Administrative Procedures Act (Section 1-23-310 et seq.). The notice and statement of charges must be sent to the accused by certified mail return receipt requested at his last known place of residence. The accused may appear and show cause why his registration should not be suspended or revoked or other disciplinary action taken. The accused has the right (a) to be confronted with and to cross-examine the witnesses against him, (b) to have witnesses subpoenaed in his behalf, and (c) to be heard in person and by counsel. Any hearing is open to the public. A stenographic record of each proceeding to revoke, suspend, or otherwise restrict or penalize a registrant must be made at the expense of the board. If a majority of the board is satisfied that the registrant is guilty of any offense charged in the formal accusation provided for in this chapter, it shall revoke, suspend, reprimand, or otherwise take any other reasonable action short of revocation or suspension, such as requiring the licensee to undertake additional professional training subject to the direction and supervision of the board. The board may also impose restraint upon the registrant as circumstances warrant until the registrant demonstrates to the board adequate professional competence. The board may also impose a civil penalty of up to two thousand dollars for each violation of the provisions of this chapter or the regulations promulgated by the board, but the total of the penalties imposed for these violations may not exceed ten thousand dollars. In all cases where disciplinary action is taken by the board, written notice of the action must then be sent by certified mail return receipt requested by the secretary of the board to the accused at his last known address, as provided to the board. Any final order of the board finding that a registrant is guilty of any offense charged in a formal accusation becomes public knowledge except for a final order dismissing the accusation or determining that a private reprimand is in order. Any decision by the board to revoke, suspend, or otherwise restrict the architect's registration or impose a civil penalty must be by majority vote and is subject to review by an administrative law judge as provided under Article 5 of Chapter 23 of Title 1."
Board empowered to issue subpoenas
SECTION 855. Section 40-3-135 of the 1976 Code is amended to read:
"Section 40-3-135. The board or any member of the board may issue subpoenas to compel the attendance of witnesses and the production of documents and also may administer oaths, take testimony, hear proofs, and receive exhibits in evidence for all purposes required in the discharge of duties under this chapter. An administrative law judge as provided under Article 5 of Chapter 23 of Title 1 shall enforce any subpoena issued pursuant to this section."
Board may file temporary restraining order or permanent injunction
SECTION 856. Section 40-3-140 of the 1976 Code is amended to read:
"Section 40-3-140. As cumulative of any other remedy or criminal prosecution, whenever it appears to the board that any person violated any of the provisions of this chapter, or the regulations or orders of the board, or any of the laws of this State relating to architecture, the board may file a suit in equity in its own name or in the name of the state, on its own relation and by its counsel with an administrative law judge as provided under Article 5 of Chapter 23 of Title 1, alleging the facts and praying for a temporary restraining order or permanent injunction against the person, restraining him from violating the law, order, or regulation or commanding him to obey the law, order, or regulation. Upon proper application and showing that the person is not registered, or that a renewal certificate has not been applied for, or that registration has been denied, revoked, or suspended, or that the law, order, or regulation has been or is about to be violated or disobeyed, which showing may be made by affidavit, an administrative law judge as provided under Article 5 of Chapter 23 of Title 1 shall issue a temporary restraining order or injunction and, upon final hearing, shall grant and issue an injunction, including mandatory injunction, upon finding the truth and sufficiency of the allegations of the petition. An administrative law judge as provided under Article 5 of Chapter 23 of Title 1 may enforce the injunction by punishment for contempt and by any other process permitted to circuit courts and make other orders in its discretion. The injunction may be limited in time, perpetual or conditional, as may be necessary and proper to the enforcement of this chapter, or the regulations or orders of the board, or the law of this State relating to architecture."
Members of the commission must be licensed auctioneers
SECTION 857. Section 40-6-40 of the 1976 Code is amended to read:
"Section 40-6-40. At least three members of the commission must be licensed auctioneers and must be active in the auction profession. At least one member must not be connected with the auction business. Action taken by the commission may be taken by a vote of three members. A quorum consists of three members. The members shall elect from among themselves a chairman who serves for one year and until his successor is elected and qualifies. No member may serve more than two successive terms as chairman. The members of the commission shall receive the same per diem, mileage, and subsistence provided by law for members of state boards, committees, and commissions. The Director of the Department of Labor, Licensing, and Regulation, pursuant to Section 4-73-15, shall employ an executive director who must have a minimum of five years experience as an auctioneer, an investigator or investigators, and other employees necessary to carry out the duties prescribed by this chapter. Employees serve at the pleasure of the Director of the Department of Labor, Licensing, and Regulation. The commission shall issue, suspend, and revoke licenses for auctioneers and apprentice auctioneers provided in this chapter and may promulgate regulations necessary to carry out its provisions."
Waiver of experience requirements
SECTION 858. Section 40-6-45 of the 1976 Code is amended to read:
"Section 40-6-45. In hiring an executive director, the Director of the Department of Labor, Licensing, and Regulation may waive the experience requirement provided in Section 40-6-40."
Appeals or denial of license, etc.
SECTION 859. Section 40-6-180 of the 1976 Code is amended to read:
"Section 40-6-180. No license may be denied, suspended, or revoked, and no other disciplinary action against a licensee may be taken, until after fifteen days' notice has been given in writing to the licensee or applicant stating the ground of the proposed action and until a public hearing has been held at which he shall have opportunity to be heard, present testimony in his behalf, and be confronted by witnesses against him, if he requests the hearing. The commission, in its discretion, may grant the accused a temporary permit to auction pending the hearing and determination. Determinations must be made and the licensee or applicant notified of them within five days after the hearing. Any auctioneer notified of a suspension may request a rehearing within twenty days from the date of notification of determination. Upon a rehearing and continued denial, suspension, or revocation of license, or other disciplinary action, or upon a refusal for rehearing, the party is entitled to appeal his case to an administrative law judge as provided under Article 5 of Chapter 23 of Title 1 (the Administrative Procedures Act). The commission or its authorized representatives may subpoena witnesses and documents for any hearing and may administer oaths to the witnesses."
Applications for payment from the fund
SECTION 860. Section 40-6-220 of the 1976 Code is amended to read:
"Section 40-6-220. (A) Applications for payment from the fund must be heard and decided by a majority of the members of the commission. After a hearing, if the commission finds that the claim must be paid from the fund, the commission or an administrative law judge as provided under Article 5 of Chapter 23 of Title 1, if appealed, shall enter an order requiring payment in accordance with the limitations in this chapter. Subject to commission approval, a claim based upon an application for monies may be compromised. However, the commission is not bound by the compromise or stipulation of the licensee.
(B) Upon payment of a claim, the license of the person against whom the claim was applied is revoked. The licensee must not be issued another license until he repays the monies from his claim to the fund, including interest at the rate of eight percent a year. Nothing in this section prevents the commission or other authority from pursuing other remedies at law or equity.
(C) An applicant receiving monies from the fund shall subrogate rights relative to the claim to the commission to the extent of monies paid, including interest, and shall cooperate with the commission in the prosecution of the subrogated claim. Amounts recovered against the licensee or other responsible parties must be deposited into the fund, less costs and expenses of collection."
Board to elect its own officers
SECTION 861. Section 40-7-60 of the 1976 Code is amended to read:
"Section 40-7-60. The board shall elect its own officers. The Director of the Department of Labor, Licensing, and Regulation, pursuant to Section 40-73-15, shall appoint a secretary. The secretary shall receive an annual salary, such salary, as well as all other expenses of the board, to be paid only out of the revenue derived from fees collected under the provisions of this chapter. The secretary shall keep and preserve all records of the board, issue all necessary notices to the barbers of the state and perform such other duties, clerical and otherwise, as may be imposed upon him by the Director of the Department of Labor, Licensing, and Regulation. The secretary shall turn over, as required by law, all moneys collected by him and render full, itemized and detailed reports therewith, as required by law. He shall, before entering upon the duties of his office, execute to the state a satisfactory bond, with a duly licensed bonding company in this State, as surety or with other acceptable surety, such bond to be in the penal sum of not less than ten thousand dollars and conditioned upon the faithful performance of the duties of his office. The Director of the Department of Labor, Licensing, and Regulation may employ such staff as he deems necessary to carry out functions of the board as prescribed in this chapter subject to funds available to the board."
Appeals
SECTION 862. Section 40-7-270 of the 1976 Code is amended to read:
"Section 40-7-270. Any barber in the state whose case has been passed upon by the board may appeal to an administrative law judge as provided under Article 5 of Chapter 23 of Title 1."
Board created
SECTION 863. Section 40-9-30 of the 1976 Code is amended to read:
"Section 40-9-30. There is hereby created the South Carolina Board of Chiropractic Examiners consisting of eight members. One licensed chiropractor shall be appointed by the Governor from each congressional district who shall be a licensed and practicing chiropractor residing and practicing in the district he represents. The board shall certify in writing to the Governor the names of the two nominees who shall have received the highest number of votes in the subject district's election. The Governor may reject any or all of the nominees upon satisfactory showing as to the unfitness of those rejected. If the Governor declines to appoint any of such nominees so submitted, additional nominees shall be submitted in the same manner. One member of the board, who shall be a licensed and practicing chiropractor, shall be appointed by the Governor at large from the state, and one member shall be appointed by the Governor who shall not be a member of the chiropractic or medical profession. The conduct of the balloting for the nominees for the board from the respective congressional districts shall be the responsibility of the Board of Chiropractic Examiners. Each chiropractic member shall have been a regularly licensed and practicing chiropractor in South Carolina in good standing for a period of five years preceding the date of his appointment.
The members of the board shall serve staggered terms with the members from the first, third and fifth district and one member at large who is not from the chiropractic or medical profession serving a two-year term, and all others serving a four-year term. All terms will be for four years after the initial board is appointed. The Governor may remove any member of the board who has been guilty of continued neglect of his duties, guilty of a misdemeanor, a felony or who is found to be incompetent. No member shall be removed without first giving him an opportunity to refute the charges filed against him. He shall be given a copy of the charges at the time they are filed.
The South Carolina Board of Chiropractic Examiners shall meet at least twice a year at such time and place as determined by the board. The board shall hold elections for its officers each year. The board may call additional meetings when necessary for the transaction of board business. The board shall adopt rules and regulations for its government, and for judging the professional and ethical competence of chiropractors including the code of chiropractic ethics, and for the discipline of chiropractors. A majority of the board shall constitute a quorum for the transaction of business.
The board may:
(1) establish suitable procedures for carrying out its duties pursuant to the provisions of this chapter;
(2) execute certificates which shall be accepted in the courts of this State and by an administrative law judge as provided under Article 5 of Chapter 23 of Title 1 as the best evidence as to the minutes of the board and the best evidence as to the registration or nonregistration of any person under the requirements of this chapter;
(3) adopt, and from time to time, revise regulations not inconsistent with the law, as may be necessary to carry out the provisions of this chapter, including but not limited to regulations concerning patient care and treatment, solicitation of patients and advertising; provided, that the board shall not prohibit or discriminate as to advertising in any particular media;
(4) cause the prosecution of all persons violating the provisions of this chapter and have power to incur necessary expenses therefor;
(5) keep a record of all its proceedings;
(6) (reserved);
(7) fix the time for holding its meetings;
(8) examine, license, and renew the licenses of qualified applicants and certify applicants as to their ability and as to the degree of their practice of chiropractic as authorized under the laws of this State; provided, however, that the non-chiropractic member of the board shall not participate in the examination of any license applicant on matters of technical or professional nature; provided, further, that the board shall use the National Board Examination of the National Board of Chiropractic Examiners in lieu of the state written examination for persons graduating from an approved chiropractic college pursuant to Section 40-9-40 after July 1, 1982.
(9) judge the professional and ethical competence of chiropractors, establish a code of chiropractic ethics, and provide for the discipline of chiropractors;
(10) order the revocation, suspension, or otherwise restrict the license of licensees to practice chiropractic or take any other disciplinary action other than revocation or suspension. Any action of the board relating to the revocation or suspension of a license, or other action restricting a license or otherwise disciplining a licensee, shall be taken only after a written complaint of misconduct has been filed with the board in accordance with regulations promulgated by the board. After such complaint a closed hearing shall be held by any examiner selected by the board after thirty days' notice to the complainant and the licensee or his counsel. The Attorney General's office upon request of the board shall present the case for the complainant before the examiner. Upon receipt of the examiner's report, the board shall notify the complainant and the licensee and his counsel of the time and place at which the board will consider the report for the purpose of determining its action thereon, such notice to be given not less than ten days prior to such meeting. The complainant and the licensee and his counsel shall have the right to appear before the board at such meeting and submit briefs and be heard in oral argument in opposition to or in support of the recommendations of the board. The Attorney General's office shall also have the right to appear before the board and submit briefs and be heard in oral argument. Upon its final review, the board may either dismiss the complaint or find that the licensee is guilty of misconduct meriting sanction. The board shall file a final certified report of the proceedings before it with the secretary of the board who shall forthwith notify the complainant and the licensee and his counsel of such action. A decision of the board to revoke, suspend or otherwise restrict a license or to limit or otherwise discipline a licensee or one who is found to be practicing chiropractic in noncompliance with this chapter shall not become effective until the tenth day following the date of delivery to the licensee of a written copy of the decision. Service of a petition for a review of the decision shall stay the board's decision pending completion of the appellate process."
Appeals from action of board
SECTION 864. Section 40-9-31 of the 1976 Code is amended to read:
"Section 40-9-31. Any action of the board relating to the revocation or suspension of a license, or other action restricting a license or otherwise disciplining a licensee shall be taken only after a written complaint of misconduct has been filed with the board in accordance with regulations promulgated by the board. After such complaint, a closed hearing shall be held by an examiner selected by the board after thirty days' notice to the complainant and the licensee or their counsel. The Attorney General's office, upon request of the board, shall present the case for the complainant before the examiner. Upon receipt of the examiner's report, the board shall notify the complainant and the licensee and his counsel of the time and place at which the board will consider the report for the purpose of determining its action thereon, such notice to be given not less than ten days prior to such meeting. The complainant and the licensee and his counsel shall have the right to appear before the board at such meeting, submit briefs and be heard in oral argument in opposition to or in support of the recommendations of the board. The Attorney General's office shall also have the right to appear before the board and submit briefs and be heard in oral argument. Upon its final review, the board may either dismiss the complaint or find that the licensee is guilty of misconduct meriting sanction. The board shall file a final certified report of the proceedings before it with the secretary of the board who shall forthwith notify the complainant and the licensee and his counsel of such action. A decision of the board to revoke, suspend or otherwise restrict a license or to limit or otherwise discipline persons engaging in the practice of chiropractic shall require a majority vote of the membership of the board. The board's decision shall be subject to appeal to an administrative law judge as provided under Article 5 of Chapter 23 of Title 1, which shall hear the matter upon petition filed by the licensee with an administrative law judge as provided under Article 5 of Chapter 23 of Title 1 and served upon the secretary of the board within ten days from the date of delivery of the board's decision to the licensee. A decision by the board to revoke, suspend, or otherwise restrict a license or limit or otherwise discipline a licensee or one who is found to be practicing chiropractic in non-compliance with this chapter shall not become effective until the tenth day following the date of delivery to the licensee of a written copy of the decision. Service of a petition for a review of the decision shall stay the board's decision pending completion of the appellate process."
Director of department may appoint executive director
SECTION 865. Section 40-9-36 of the 1976 Code is amended to read:
"Section 40-9-36. The Director of the Department of Labor, Licensing, and Regulation, pursuant to Section 40-73-15 may appoint and employ a qualified person to serve as executive director, and shall fix his compensation and define his duties. The executive director of the board shall have the power to make contracts, with board approval, for the furtherance of the board's functions and the management of the office. The Director of the Department of Labor, Licensing, and Regulation may employ such other persons as may be necessary to carry on its work. The salaries of employees and necessary expenses incurred in the performance of their duties shall be paid out of funds held by the board."
Investigations or proceedings by the board
SECTION 866. Section 40-9-95 of the 1976 Code is amended to read:
"Section 40-9-95. For the purpose of any investigation or proceeding under the provisions of this chapter, the board or any person designated by it may administer oaths and affirmations, subpoena witnesses, take testimony, and require the production of any documents or records which the board deems relevant to the inquiry. In the case of contumacy by, or refusal to obey a subpoena issued to any person, an administrative law judge as provided under Article 5 of Chapter 23 of Title 1, upon application by the board, may issue an order requiring the person to appear before the board or the person designated by it and produce documentary evidence and to give other evidence concerning the matter under inquiry.
Whenever the board has sufficient evidence that any person is violating any provision of this chapter, it may, in addition to all other remedies, order such person to immediately desist and refrain from such conduct. The board may apply to an administrative law judge as provided under Article 5 of Chapter 23 of Title 1 for an injunction restraining the person from such conduct. An administrative law judge as provided under Article 5 of Chapter 23 of Title 1 may issue a temporary injunction ex parte, and upon notice and full hearing may issue any other order in the matter it deems proper. No bond shall be required of the board by an administrative law judge as provided under Article 5 of Chapter 23 of Title 1 as a condition to the issuance of any injunction or order contemplated by the provisions of this section."
Board shall organize each year
SECTION 867. Section 40-11-40 of the 1976 Code is amended to read:
"Section 40-11-40. The board shall organize each year by electing a chairman and a vice-chairman, who shall serve for one year. The Director of the Department of Labor, Licensing, and Regulation pursuant to Section 40-73-15 may employ a secretary-treasurer or a secretary and a treasurer, who need not be members of the board. The board may make such bylaws, rules and regulations as it shall deem best, provided they are not in conflict with the laws of the state. The treasurer shall give bond in such sum as the director may determine, with such surety as shall be approved by the director, such bond to be conditioned for the faithful performance of the duties of his office and for the faithful accounting of all moneys and other property that shall come into his hands."
Director of department to employ personnel
SECTION 868. Section 40-11-60 of the 1976 Code is amended to read:
"Section 40-11-60. The Director of the Department of Labor, Licensing, and Regulation may pursuant to Section 40-73-15, employ such clerical, stenographic and other personnel as may be necessary, in his judgment, to the administration of this chapter and may prescribe their duties and fix their compensation, which shall be payable as an expense of the administration of this chapter."
Record of proceedings required
SECTION 869. Section 40-11-90 of the 1976 Code is amended to read:
"Section 40-11-90. A secretary shall keep a record of the proceedings of the board and a register of all applicants for licenses showing for each the date of application, name, qualifications, place of business, place of residence and whether the license was granted or refused. The books and register of the board shall be prima facie evidence of all matters recorded therein."
Board to issue license
SECTION 870. Section 40-11-150 of the 1976 Code is amended to read:
"Section 40-11-150. The board shall issue a license as a matter of right to any person who shall have had an application on a prescribed form therefor on file for at least seven days, presents a bidder's or contractor's certificate issued by the Department of Transportation under Section 57-5-1650, and pays the license fees required by this chapter."
Department to give notice
SECTION 871. Section 40-11-180 of the 1976 Code is amended to read:
"Section 40-11-180. All architects and engineers preparing plans and specifications for work to be constructed in the state shall include in their invitations to bidders and in their specifications a copy of this chapter or such proportions thereof as are deemed necessary to convey to the invited bidder, whether he be a resident or nonresident of this State and whether a license has been issued to him or not, the information that it will be necessary for him to show evidence of being licensed before his bid is opened or considered, but in the case of bidders on Department of Transportation work, such notice shall state only that no contract will be awarded unless and until the bidder has been properly licensed under the provisions of this chapter."
Must be licensed to be awarded contract
SECTION 872. Section 40-11-190 of the 1976 Code is amended to read:
"Section 40-11-190. Section 40-11-10 shall not serve to prevent any person from bidding on Department of Transportation projects without having been licensed, but such person shall be licensed before he may be awarded a contract for a Department of Transportation project."
Penalty
SECTION 873. Section 40-11-300 of the 1976 Code is amended to read:
"Section 40-11-300. It shall be a misdemeanor punishable in the discretion of the court for any architect, engineer, awarding authority, owner, contractor, or person acting therefor, to receive or consider any bids unless the bidder has first obtained the licenses provided for in this chapter, except that the Department of Transportation shall not require a person to be licensed before bidding on a Department of Transportation project but shall require such person to be licensed before he may be awarded a Department of Transportation contract."
Board may petition
SECTION 874. Section 40-11-320 of the 1976 Code is amended to read:
"Section 40-11-320. Whenever it shall appear to the board that any person has or is about to violate any statute, regulation or order relating to contracting, the board may, in its name or in the name of the state, petition an administrative law judge as provided under Article 5 of Chapter 23 of Title 1, for a temporary order enjoining violation of or requiring compliance with the law. An administrative law judge as provided under Article 5 of Chapter 23 of Title 1 may, upon proper showing by a verified petition that the person is not licensed, or that such a statute, regulation or order has been or is about to be violated and that such person has been duly served with such verified petition notifying him of the board's intention to ask for a temporary restraining order, issue a temporary restraining order pending a full hearing to determine whether or not the injunction should be made permanent. An administrative law judge as provided under Article 5 of Chapter 23 of Title 1 may require the board to post a bond in such amount as it may determine."
Appeal before administrative law judge
SECTION 875. The 1976 Code is amended by adding:
"Section 40-11-350. Notwithstanding any other provision of law, the board's decision shall be subject to appeal to an administrative law judge as provided under Article 5 of Chapter 23 of Title 1, which shall hear the matter upon petition filed by the licensee with an administrative law judge as provided under Article 5 of Chapter 23 of Title 1 and served upon the Secretary of the board within ten days from the date of delivery of the board's decision to licensee. A decision by the board to revoke, suspend, or otherwise restrict a license or limit or otherwise discipline a licensee or one who is found to be practicing as a contractor in non-compliance with this chapter shall not become effective until the tenth day following the date of delivery to the licensee of a written copy of the decision. Service of a petition for a review of the decision shall stay the board's decision pending completion of the appellate process."
Board to elect its own officers
SECTION 876. Section 40-13-60 of the 1976 Code is amended to read:
"Section 40-13-60. The board shall elect its own officers. The Director of the Department of Labor, Licensing, and Regulation may appoint a full-time secretary and any other employees, pursuant to Section 40-73-15, as may be necessary to carry out the work of the board. The compensation and expenses of the members of the board, the salaries of the secretary and the clerical employees, and all other expenses of the board shall be paid from appropriations of the General Assembly based on fees collected under the provisions of this chapter and deposited in accordance with Section 40-13-70. The secretary shall keep all records of the board, issue necessary notices to the licensees and perform such other duties, clerical and otherwise, as defined by the Director of the Department of Labor, Licensing, and Regulation. Such secretary shall furnish bond to the board with a duly licensed bonding company doing business in this State in the penal sum of ten thousand dollars conditioned on the faithful performance of the duties of his office."
Powers of the board
SECTION 877. Section 40-13-80 of the 1976 Code is amended to read:
"Section 40-13-80. The board shall:
(1) Establish suitable procedures for carrying out its duties pursuant to the provisions of this chapter.
(2) Adopt and revise regulations consistent with this chapter, as may be necessary to carry out the provisions of the chapter.
(3) Initiate prosecution of persons violating the provisions of this chapter.
(4) Establish and collect license and other fees and assessments provided for in this chapter in amounts sufficient to fund the annual appropriations to the board.
(5) Monitor the professional and ethical competence of licensees.
(6) Order the revocation, suspension, or otherwise restrict the license of licensees or take other disciplinary action against them when appropriate. Such actions shall be taken pursuant to the relevant provisions of the Administrative Procedures Act."
Investigations and proceedings
SECTION 878. Section 40-13-260 of the 1976 Code is amended to read:
"Section 40-13-260. (a) For the purpose of any investigation or proceeding under the provisions of this chapter, the board or any person designated by it, may administer oaths and affirmations, subpoena witnesses, take testimony, and require the production of any documents or records which the board deems relevant to the inquiry. In the case of contumacy by, or refusal to obey a subpoena issued to any person, an administrative law judge as provided under Article 5 of Chapter 23 of Title 1, upon application by the board, may issue an order requiring the person to appear before the board or the person designated by it and produce documentary evidence and to give other evidence concerning the matter under inquiry.
(b) Whenever the board has sufficient evidence that any person is violating any provision of this chapter, it may, in addition to all other remedies, order such person to immediately desist and refrain from such conduct. The board may apply to an administrative law judge as provided under Article 5 of Chapter 23 of Title 1 for an injunction restraining the person from such conduct. An administrative law judge as provided under Article 5 of Chapter 23 of Title 1 may issue a temporary injunction ex parte, and upon notice and full hearing may issue any other order in the matter it deems proper. No bond shall be required of the board by an administrative law judge as provided under Article 5 of Chapter 23 of Title 1 as a condition to the issuance of any injunction or order contemplated by the provisions of this chapter.
(c) Every communication, whether oral or written made by or on behalf of any person or firm to the board or any person designated by it to investigate or otherwise hear matters relating to the revocation, suspension or other restriction on a license or other discipline of a licensee, whether by way of complaint or testimony, shall be privileged; and no action or proceeding, civil or criminal, shall lie against any such person or firm by or on whose behalf such communication shall have been made by reason thereof, except upon proof that such communication was made with malice.
(d) No provision of this chapter shall be construed to prohibit the respondent or his legal counsel from exercising the respondent's constitutional right of due process under the law, nor to prohibit the respondent from normal access to the charges and evidence filed against him as part of due process under the law."
Decisions subject to appeal
SECTION 879. The 1976 Code is amended by adding:
"Section 40-13-300. Notwithstanding any other provision of law, the board's decision shall be subject to appeal to an administrative law judge as provided under Article 5 of Chapter 23 of Title 1, which shall hear the matter upon petition filed by the licensee with an administrative law judge as provided under Article 5 of Chapter 23 of Title 1 and served upon the Secretary of the board within ten days from the date of delivery of the board's decision to licensee. A decision by the board to revoke, suspend, or otherwise restrict a license or limit or otherwise discipline a licensee or one who is found to be practicing as a cosmetologist in non-compliance with this chapter shall not become effective until the tenth day following the date of delivery to the licensee of a written copy of the decision. Service of a petition for a review of the decision shall stay the board's decision pending completion of the appellate process."
Board to adopt rules and regulations
SECTION 880. Section 40-15-40 of the 1976 Code is amended to read:
"Section 40-15-40. The board shall adopt rules and regulations not inconsistent with this chapter for its own organization and for the practice of dentistry and dental hygiene and the performance of dental technological work in this State, and for carrying out the provisions of this chapter, and may amend, modify and repeal any rules and regulations from time to time. The Director of the Department of Labor, Licensing, and Regulation, pursuant to Section 40-73-15, shall appoint such committees, special examiners, agents and employees as he may deem necessary or proper to carry out the provisions of this chapter, the expense thereof to be charged and paid as other expenditures of the board. The board shall hold at least one examination in each year for persons who desire to become licensed dentists or dental hygienists or registered dental technicians. A secretary shall keep a full record of all proceedings of the board, and a complete registry of all licensed dentists, licensed dental hygienists and registered dental technicians. A transcript of any entry in such record or registry certified by the secretary shall be competent evidence."
Executive director to be bonded
SECTION 881. Section 40-15-50 of the 1976 Code is amended to read:
"Section 40-15-50. The executive director must be bonded in an amount as the Director of the Department of Labor, Licensing, and Regulation may fix for the faithful discharge of his duties as custodian of the monies paid to the board. He shall receive the salary as appropriated by the Director of the Department of Labor, Licensing, and Regulation. Each of the board members shall receive for each day actually engaged in the duties of his office per diem, mileage, and subsistence at the rate established by law for boards, commissions, and committees. All fees received by the board become the property of the state general fund and must be deposited to the account of the State Treasurer. The expenditures of the board must be from state appropriations. All fines must be deposited into a special account to be held by the State Treasurer for the purpose of the payment of administrative costs upon the approval of the Budget and Control Board. At any time the balance in the special account exceeds twenty thousand dollars, all funds in excess of that amount must be remitted to the general fund."
Oaths, affirmations, and subpoenas may be administered
SECTION 882. Section 40-15-185 of the 1976 Code is amended to read:
"Section 40-15-185. For the purpose of any investigation or proceeding under the provisions of this chapter, the board or any person designated by it may administer oaths and affirmations, subpoena witnesses, take evidence, and require the production of any documents or records which the board deems relevant to the inquiry. In the case of contumacy by or the refusal to obey a subpoena issued to any person, an administrative law judge as provided under Article 5 of Chapter 23 of Title 1, upon application of the board, may issue an order requiring the person to appear before the board or the person designated by it and produce documentary evidence and give other evidence concerning the matter under inquiry."
License may be revoked or suspended
SECTION 883. Section 40-15-200 of the 1976 Code is amended to read:
"Section 40-15-200. If the board is satisfied that the dentist, dental hygienist, or dental technician is guilty of any offense charged in the formal accusation provided for in this chapter, it may revoke or suspend the license or the registration certificate, reprimand the dentist, dental hygienist, or dental technician either publicly or privately, or take any other reasonable action short of revocation or suspension, such as probation or the imposition of a fine of up to one thousand dollars to be paid into the general fund except for expenses incurred by the board in the procuring, or requiring the person to undertake additional professional training subject to the direction and approval of the board, psychiatric evaluations, controlled substance restrictions, institutional practice under supervision, and any other actions considered appropriate by the board. Any decision by the board to revoke, suspend, or otherwise restrict or limit a license or registration certificate or otherwise discipline a licensee or holder of a registration certificate must be by majority vote of the members of the board eligible to participate and is subject to review by an administrative law judge as provided under Article 5 of Chapter 23 of Title 1 upon petition filed by the licensee or holder of a registration certificate with the court and a copy thereof served upon the director of the board within thirty days from the date of delivery of the board's decision to the licensee or holder of the registration certificate. The review is governed by Chapter 23 of Title 1."
Appeal
SECTION 884. Section 40-15-210 of the 1976 Code is amended to read:
"Section 40-15-210. The person whose license or registration certificate has been suspended or revoked may, within thirty days, appeal from the action of the board in suspending or revoking the same to an administrative law judge as provided under Article 5 of Chapter 23 of Title 1. The board shall certify to an administrative law judge as provided under Article 5 of Chapter 23 of Title 1 for its consideration a record of the hearing before the board."
Final order of the board
SECTION 885. Section 40-15-215 of the 1976 Code is amended to read:
"Section 40-15-215. Any final order of the board finding that a dentist, dental hygienist, or dental technician is guilty of any offense charged in a formal accusation is public knowledge except for a final order dismissing the accusation or determining that a private reprimand is in order or unless stayed by an administrative law judge as provided under Article 5 of Chapter 23 of Title 1 or the board. Any final order which is made public may be mailed to local and state dental associations and all hospitals in which the respondent has staff privileges, to states where the dentist, dental hygienist, or dental technician has a license or certificate as known to the board, or to any other agency the board considers appropriate. If a license or certificate is voluntarily limited or surrendered by the holder, a public record of the existence and duration of the limitation or surrender must be maintained by the board, and no further distribution of the information may be made. All information, investigations, and proceedings concerning the circumstances underlying an action by the holder of the license or certificate is privileged and confidential."
Authority to bring suit
SECTION 886. Section 40-15-370 of the 1976 Code is amended to read:
"Section 40-15-370. The board may, in its own name, maintain a suit for an injunction against any person violating any provision of this chapter. The suit shall be commenced and prosecuted before an administrative law judge as provided under Article 5 of Chapter 23 of Title 1 in the same manner as other suits in equity. An injunction may be issued without proof of actual damage sustained by any person. An injunction shall not relieve a person from criminal prosecution for violation of any provision of this chapter. The office of the Attorney General of South Carolina shall, if requested by the board, represent the board in connection with legal proceedings undertaken pursuant to this chapter."
Administrative Law Judge may enjoin
SECTION 887. Section 40-15-380 of the 1976 Code is amended to read:
"Section 40-15-380. An administrative law judge as provided under Article 5 of Chapter 23 of Title 1 of this State is hereby vested with jurisdiction and power to enjoin any person violating this chapter in a proceeding brought by the board or by any citizen of this State."
Definition
SECTION 888. Section 40-19-10(16) of the 1976 Code is amended to read:
"(16) `Secretary' means an executive secretary employed by the Director of the Department of Labor, Licensing, and Regulation pursuant to Section 40-73-15."
Director of the department to employ executive secretary
SECTION 889. Section 40-19-70 of the 1976 Code is amended to read:
"Section 40-19-70. The Director of the Department of Labor, Licensing, and Regulation, pursuant to Section 40-73-15, shall employ an executive secretary and an inspector, both of whom must be licensed embalmers and funeral directors with not less than five consecutive years actual experience as a licensee under this chapter. The secretary and inspector shall receive an annual salary and necessary travel and other incidental expenses as are incurred in the performance of their duties. The inspector is responsible to the board for field inspection and enforcement of the other provisions of this chapter. The secretary is responsible for dissemination of information relating to the practice of funeral service and procedures for inquiries and registration of complaints. He shall maintain a record of the name and business address of every person to whom licenses have been granted, the number and date of each license, and the date of each renewal. He shall supply on request to any person licensed for the practice of funeral service a list of all persons holding a valid license under this chapter, their business address, the number of their license, and a copy of all state laws and regulations relating to the practice of funeral service. The secretary shall maintain a record of public complaints or allegations concerning licensees and the disposition of complaints. The secretary shall prepare and have printed all necessary forms used in connection with operations of the board. The secretary or the inspector may serve and execute any process issued by the board or any court or an administrative law judge as provided under Article 5 of Chapter 23 of Title 1 and shall perform any other duties ordered by the Director of the Department of Labor, Licensing, and Regulation."
Director may employ personnel
SECTION 890. Section 40-19-80 of the 1976 Code is amended to read:
"Section 40-19-80. The Director of the Department of Labor, Licensing, and Regulation, pursuant to Section 40-73-15, may employ clerical assistants and employees as may be necessary to carry out the provisions of this chapter. The terms and conditions of this employment must be determined by the Director of the Department of Labor, Licensing, and Regulation and applicable state law. The board, when legal services are necessary, must be represented by the Office of the Attorney General."
Administrative law judge may review order of the board
SECTION 891. Section 40-19-160 of the 1976 Code is amended to read:
"Section 40-19-160. Whenever the board has reason to believe that any person to whom a license has been issued has become unfit to practice as a licensed funeral director or embalmer or has violated any of the provisions of this chapter or regulation of the board or, whenever a written complaint charging the holder of a license with the violation of any provision of this chapter is filed with the board, the board shall conduct an investigation within thirty days. If after investigation it appears that probable cause exists for a hearing, a time and place must be set by the board for a hearing to determine whether or not the license must be suspended or revoked. No action to suspend, revoke, or cancel any license may be taken by the board until the licensee has been furnished with a statement of the charges against him and by whom he is charged and the names and addresses of all witnesses against him and a notice of the time and place of the hearing on the charges at least thirty days prior to the date of the hearing. The notice and statement of charges must be mailed to the accused at his last known place of residence. The accused may appear and show cause why his license should not be suspended or revoked, or other disciplinary action taken. The accused has the right to be confronted with and to cross-examine the witnesses against him and he has the right to counsel. A stenographic record of each proceeding to revoke, suspend, or otherwise restrict a license must be made at the expense of the board, and a transcript of the record must be kept in its files. If the board is satisfied that the licensee is guilty of any offense charged in the formal accusation provided for in this chapter, it shall revoke, suspend, reprimand, or otherwise take any other reasonable action short of revocation or suspension, such as requiring the licensee to undertake additional professional training subject to the direction and supervision of the board. The board may also impose restraint upon the licensee as circumstances warrant until the licensee demonstrates to the board adequate professional competence. In all cases where disciplinary action is taken by the board, written notice of the action must then be mailed by the secretary of the board to the accused at his last known address, as provided to the board.
Any final order of the board finding that a licensee is guilty of any offense charged in a formal accusation becomes public knowledge except for a final order dismissing the accusation or determining that a private reprimand is in order. All final orders which are made public must be mailed to local and state professional associations, all firms and facilities with which the respondent is associated, states where the person has a license known to the board, and to any other source that the board wishes to furnish this information.Any decision by the board to revoke, suspend, or otherwise restrict the license must be by majority vote and is subject to review by an administrative law judge as provided under Article 5 of Chapter 23 of Title 1."
Investigations and proceedings to be confidential
SECTION 892. Section 40-19-170 of the 1976 Code is amended to read:
"Section 40-19-170. All investigations and proceedings undertaken under the provisions of this chapter must be confidential. Every communication, whether oral or written, made by or on behalf of any complainant to the board or its agent or any hearing panel or member of the panel, pursuant to this chapter, whether by way of complaint or testimony, is privileged. No action or proceeding, civil or criminal, shall lie against any person by whom or on whose behalf the communication has been made, except upon proof that the communication was made with malice. No part of this chapter may be construed as prohibiting the respondent or his legal counsel from exercising the respondent's constitutional right or due process under the law, nor to prohibit the respondent from normal access to the charges and evidence filed against him as a part of due process under the law.
No member of the board, or its committees, special examiners, agents and employees may be held liable for acts performed in the course of official duties, except where actual malice is shown. For the purpose of any investigation or proceeding under the provisions of this chapter, the board or any person designated by it may administer oaths and affirmations, subpoena witnesses, take evidence, and require the production of any documents or records which the board considers relevant to the inquiry. In the case of contumacy by, or refusal to obey a subpoena issued to, any person, an administrative law judge as provided under Article 5 of Chapter 23 of Title 1 upon application of the board, may issue an order requiring the person to appear before the board or the person designated by it and produce documentary evidence and to give other evidence concerning the matter under inquiry.
Whenever the board has reason to believe that any person is violating or intends to violate any provision of this chapter, it may, in addition to all other remedies, order the person to immediately desist and refrain from the conduct. The board may apply to an administrative law judge as provided under Article 5 of Chapter 23 of Title 1 for an injunction restraining the person from the conduct. An administrative law judge as provided under Article 5 of Chapter 23 of Title 1 may issue a temporary injunction ex parte and upon notice and full hearing may issue any other order in the matter it considers proper. No bond may be required of the board by an administrative law judge as provided under Article 5 of Chapter 23 of Title 1 as a condition to the issuance of any injunction or order contemplated by the provisions of this section.
A licensee or funeral home found to be in violation of a provision of this chapter or failing, omitting, or neglecting to obey, observe, or comply with a lawful order of the board is subject to a penalty of not less than twenty-five nor more than five hundred dollars for each offense. Jurisdiction of actions to recover penalties must be brought in the name of the state in magistrate's court."
Director may employ personnel
SECTION 893. Section 40-22-150 of the 1976 Code is amended to read:
"Section 40-22-150. The Director of the Department of Labor, Licensing, and Regulation, pursuant to Section 40-73-15, may employ clerical or other assistants as necessary for carrying out the duties of this chapter."
Appeal
SECTION 894. Section 40-22-420 of the 1976 Code is amended to read:
"Section 40-22-420. A person who is aggrieved by an action of the board in suspending, denying, or revoking his certificate of registration, or a reprimand, may appeal the action to an administrative law judge as provided under Article 5 of Chapter 23 of Title 1."
Enforcement of provisions
SECTION 895. Section 40-22-440 of the 1976 Code is amended to read:
"Section 40-22-440. To enforce the provisions of this chapter, or to restrain a violation of this chapter, the board may apply to an administrative law judge as provided under Article 5 of Chapter 23 of Title 1 in the name of the state for an injunction as provided generally in civil cases. In such proceedings:
(1) It is not necessary to establish the absence of an adequate remedy at law.
(2) Board members are not personally liable for damages resulting from a wrongful injunction.
(3) The initial order of injunction must include a rule to show cause and is temporary pending the return to the rule."
Board created - composition
SECTION 896. Section 40-23-20 of the 1976 Code is amended to read:
"Section 40-23-20. There is created the South Carolina Environmental Certification Board composed of nine members appointed by the Governor.
Two members must be certified water operators, two must be certified wastewater operators, one of whom must be certified in the physical chemical specialty, one must be a licensed well driller, one must be a member of the public at large, one must be a representative from the Water Resources Division of the Department of Natural Resources, one must be a member of the Department of Health and Environmental Control, designated by the director, and one must be a representative from a technical education or other higher education institution actively involved in operator training. The South Carolina Water and Pollution Control Association may recommend one certified water operator and one certified wastewater operator, who is certified in the physical chemical specialty; the South Carolina section of the American Water Works Association may recommend one certified water operator; the South Carolina section of the Water Pollution Control Federation may recommend one certified wastewater operator; and the South Carolina Well Drillers' Association may recommend a certified well driller. Any individual, group, or association may nominate qualified individuals to the Governor for his consideration.
Members shall serve four years, not to exceed two terms, and until successors are appointed and qualify. The Governor may reject any of the nominees found unacceptable. Vacancies must be filled in the manner as the original appointment for the unexpired portion of the term."
Meetings of board
SECTION 897. Section 40-23-40 of the 1976 Code is amended to read:
"Section 40-23-40. The board shall meet at least once a year and at other times as its bylaws provide, at a place designated by the chairman. The board shall elect a chairman and a vice-chairman from its membership annually. The board may promulgate regulations, pursuant to the Administrative Procedures Act it considers necessary for the purposes of carrying out the provisions of this chapter.
No member of the board or its committees, special examiners, agents, and employees may be held liable for acts performed in the course of official duties except where actual malice is shown. For the purpose of any investigation or proceeding under the provisions of this chapter, the board or a person designated by it may administer oaths and affirmations, subpoena witnesses, take evidence, and require the production of documents or records which the board considers relevant to the inquiry. In the case of contumacy by or refusal to obey a subpoena issued to a person, an administrative law judge as provided under Article 5 of Chapter 23 of Title 1 upon application of the board may issue an order requiring the person to appear before the board or the person designated by it and produce documentary evidence and to give other evidence concerning the matter under inquiry.
Whenever the board has reason to believe that a person is violating or intends to violate a provision of this chapter, it may, in addition to all other remedies, order the person to desist immediately and refrain from the conduct. The board may apply to an administrative law judge as provided under Article 5 of Chapter 23 of Title 1 for an injunction restraining the person from the conduct. The examiner may issue a temporary injunction ex parte not to exceed ten days and, upon notice and full hearing, may issue any other order in the matter it considers proper. No bond is required of the board by the examiner as a condition to the issuance of an injunction or order contemplated by the provisions of this section."
Revocation of license
SECTION 898. Section 40-23-127 of the 1976 Code is amended to read:
"Section 40-23-127. If the board is satisfied that a licensee is guilty of an offense charged in the formal accusation provided for in this chapter, it shall revoke, suspend, reprimand, or otherwise take other reasonable action short of revocation or suspension, such as requiring the operator to undertake additional professional training. In all cases where disciplinary action is taken by the board, written notice of the action must be mailed by the board to the accused at his last known address as provided to the board by the accused.
Any final order of the board finding that a licensee is guilty of an offense charged in a formal accusation becomes public knowledge except for a final order dismissing the accusation or determining that a private reprimand is in order. All final orders which are made public must be mailed to local and state professional associations, all firms or facilities with which the respondent is associated, states where the licensee has a license or certificate known to the board, and to any other source that the board wishes to furnish this information.
Any decision by the board to revoke, suspend, or otherwise restrict the certificate must be by majority vote and is subject to review by an administrative law judge as provided under Article 5 of Chapter 23 of Title 1."
Definitions, etc., name changes
SECTION 899. Chapter 28 of Title 40 of the 1976 Code is amended to read:
"CHAPTER 28
Landscape Architects
Section 40-28-10. Unless the context or subject matter otherwise requires:
(a) `Landscape architect' means a person who is licensed to practice landscape architecture in this State.
(b) `Landscape architecture' means the performance of professional services, such as consultation, investigation, research, planning, design, preparation of drawings and specifications, and responsible inspection in connection with the development of land areas where, and to the extent that, the dominant purpose of the services is the preservation, enhancement, or determination of proper site design, natural land features, planting, naturalistic and aesthetic values, the settings and approaches to structures or other improvements, the setting of grades and determining drainage and providing for drainage structures, and the consideration and determining of environmental problems. This practice includes the design of tangible objects, drainage structures and systems, and features as are incidental and necessary to an overall or ongoing landscape plan and site design, and the landscape architect may certify the design of the tangible objects, drainage structures and systems, features as to structural soundness and as to compliance with all requirements and standards of a government or subdivision of it. This practice does not include the design of structures, drainage structures and systems, and features which are not incidental and necessary to an overall landscape plan and site design and which have separate and self-contained purposes such as are ordinarily included in the practice of engineering or architecture and does not include the making of land surveys or final plats for official approval or recordation. Nothing contained in this definition precludes a duly licensed landscape architect from performing the services described in the first sentence of this definition in connection with the settings, approaches, or environment for buildings, structures, or facilities. Nothing contained in this chapter may be construed as authorizing a landscape architect to engage in the practice of architecture, engineering, or land surveying as these terms are defined in Section 40-28-150 of this chapter, except that a landscape architect may prepare and certify all design, grading, drainage, and construction plans for roads and site-related projects which are incidental and necessary to an overall or ongoing landscape plan and site design.
(c) `Department' shall mean the Department of Natural Resources.
(d) `Council' shall mean a body of five qualified professional landscape architects appointed by the department to serve as advisors to the department, as provided for in Sections 40-28-30 through 40-28-70.
(e) `Responsible charge' shall mean direct control and personal supervision of landscape architecture.
Section 40-28-20. In order to safeguard public welfare, health and property and to promote public good, any person practicing or offering to practice landscape architecture, privately or in public service, shall be required to submit evidence that he is qualified to practice and shall become registered as hereinafter provided. It shall be unlawful for any person to practice landscape architecture or to use the term or title `Landscape Architect' unless duly licensed under the provisions of this chapter.
Section 40-28-30. The department shall serve as the board of registration for landscape architects and shall administer the provisions of this chapter. The department shall appoint a council of five qualified professional landscape architects who shall have the qualifications required in the following section to recommend certification of those eligible to become registered landscape architects. The five members of the council shall be appointed for five years and until their successors have been appointed and qualify; provided, that the initial terms shall be made so that the term of one member shall expire on June thirtieth of each year.
Section 40-28-40. Each member of the council must be a registered landscape architect who has been actively engaged in the practice of landscape architecture for a period of at least five years and who has been in responsible charge of landscape architecture for at least three years.
Section 40-28-50. Each member of the council may receive an amount as provided for in the annual General Appropriations Act for each day actually and reasonably engaged in the services of the department and must be reimbursed for all actual traveling, incidental, and clerical expenses necessarily incurred in carrying out the provisions of this chapter. These expenses must be paid from general appropriations to the department.
Section 40-28-60. Vacancies in the membership of the council shall be filled for the unexpired portion of the term in the manner of the original appointments.
Section 40-28-70. The council shall hold at least two regular meetings each year. Special meetings may be held as the bylaws of the council provide. The council shall elect annually a chairman, a vice chairman and a secretary. A quorum of the council shall consist of three members.
Section 40-28-80. The department shall have the following powers:
(a) To adopt and amend bylaws, rules of procedure and regulations to administer and carry out the provisions of this chapter and for the conduct of its affairs and functions consistent with the Constitution and laws of this State or this chapter which may be reasonably necessary for the performance of its duties and the regulation of its proceedings, meetings, records, examinations and the conduct thereof, and to adopt and promulgate a code of ethics which shall be binding upon all persons registered under or subject to this chapter.
(b) To affix its official seal to each numbered certificate or license issued.
(c) To apply in the name of the state for relief by injunction to enforce the provisions of this chapter or to restrain any violation thereof. In such proceedings it shall not be necessary to allege or prove either that an adequate remedy at law does not exist or that substantial or irreparable damage would result from the continued violation thereof. The members of the department shall not be personally liable under this proceeding.
Section 40-28-90. All funds derived under the provisions of this chapter shall be remitted to the State Treasurer as collected. Such funds may be expended as directed by the department upon warrant requisitions directed to the Comptroller General who shall, after being satisfied of the propriety of payment, issue his warrant on the State Treasurer.
Section 40-28-100. The department shall keep a record of its proceedings and of all applications for registration, which records shall show the name, age, and last known address of each applicant, the place of business of applicant, education, experience, and other qualifications, type of examination required, whether or not a license was granted, whether or not the applicant was denied a license, the date of the action of the department, and other information considered necessary by the department. The record of the department is evidence of the proceedings of the department and a transcript duly certified by the secretary under seal is admissible as evidence with the same force and effect as the original.
Section 40-28-110. To be eligible for registration and licensing as a professional landscape architect in South Carolina an applicant shall read and write the English language and:
(1) be a graduate of an accredited landscape architectural curriculum approved by the department and have had two years of varied landscape architectural experience under the supervision of a landscape architect registered under this chapter or other qualified person, or experience approved by the department, and satisfactorily pass a written examination as prescribed by the department; or
(2) be a high school graduate or have an equivalent education as determined by the department and, in addition, at least eight years of varied landscape architectural experience under the supervision of a landscape architect registered under this chapter or other qualified person or experience approved by the department, and satisfactorily pass a written examination as prescribed by the department; A maximum of three years of the experience requirement contained in subsection (2) of this section may be satisfied by proof of education or nonaccredited degree, as considered appropriate by the department; or
(3) hold a license or certification to practice landscape architecture issued to him upon examination by a legally constituted board of examiners of another state or the District of Columbia, or a territory or possession of the United States and if requirements of the state, district, territory, or possession in which the applicant is licensed or registered are substantially equivalent to those of this State; or
(4) submit certification documents from the Council of Landscape Architectural Registration Boards (CLARB) verifying his qualifications for registration, and an individual holding such a certification may be accepted at the discretion of the department.
Section 40-28-120. Examinations must be offered at least annually, the time and place to be established by the department.
At the discretion of the department, the written examination may be administered to candidates who are eligible for registration under Section 40-28-110. The department may admit to the examination a person who may complete the experience requirements within ninety days after the examination.
Administration and evaluation of the examination must be conducted in a manner prescribed by the department. Candidates shall retain credit for any parts of the examination passed and may be permitted to retake a failed part of the examination.
Upon proper application, the department, at its discretion, may credit to a candidate a prescribed part of the examination successfully passed and properly attested to by another state, territory, or possession of the United States or the District of Columbia. The candidate then may take the remaining examination parts and, if successfully completed, may be registered and licensed by the department. The department shall accept the transfer of grades only from the state of original application.
Section 40-28-130. The department, subject to the provisions of this chapter and the rules and regulations of the department promulgated thereunder prescribing the qualifications for a landscape architect license, may permit the practice of landscape architecture in this State under a landscape architect license issued under the laws of any other state, upon payment of the current fee established by the department, and upon submission of evidence satisfactory to the department:
(1) That the other state maintains a system and standard of qualifications and examinations for a landscape architect license which were substantially equivalent to those required in this State at the time the license was issued by the other state;
(2) That the other state gives similar recognition and endorsement to landscape architect licenses of this State.
Section 40-28-140. Each landscape architect, upon registration, shall obtain a seal of the design authorized by the department, bearing the name of the registrant, number of certificate or license, and the legend `South Carolina Registered Landscape Architect'. The seal may be used only while the registrant's certificate or license is in full force and effect. Certificates of registration, licenses, and identification cards must be signed by the chairman of the department and the secretary of the council. Nothing in this chapter may be construed to authorize the use or acceptance of the seal of the landscape architect in lieu of the seal of an architect, engineer, or land surveyor.
Section 40-28-150. This chapter shall not be construed to require licensing in the following cases:
(a) the practice of landscape architecture by any person who acts under the supervision of a registered landscape architect or by an employee of a person lawfully engaged in the practice of landscape architecture and who in either event does not assume responsible charge of design or supervision;
(b) the practice of architecture by a duly registered professional architect and the performing of landscape architectural work by a registered architect or by an employee under supervision of a registered architect, when such work is incidental to their practice;
(c) the practice of engineering by a duly registered professional engineer and the performing of landscape architectural work by a registered engineer or by an employee under supervision of a registered engineer, when such work is incidental to their practice;
(d) the practice of surveying by a duly registered professional land surveyor and the performing of landscape architectural work by a registered professional land surveyor or by an employee under supervision of a registered professional land surveyor, when such work is incidental to their practice;
(e) the practice of landscape architecture by employees of the United States or South Carolina Government while engaged within this State in the practice of landscape architecture for the government or projects sanctioned by or totally sponsored by the Government;
(f) the practice of planning as customarily done by regional or urban planners;
(g) the practice of arborists, foresters, gardeners, home builders or horticulturists;
(h) the practice of any nurseryman, general or landscape contractor, such practice to include design, planning, location and arrangements of plantings or other ornamental features.
Section 40-28-160. The right to engage in the practice of landscape architecture is a personal right, based upon the qualifications of the individual evidenced by his license.
(1) The license is not transferable. All final drawings, specifications, plans, reports or other papers or documents involving the practice of landscape architecture, as defined in Section 40-28-10, when issued, or filed for public record, must be dated, and bear the name and seal of the landscape architect or landscape architects who prepared or approved them.
(2) Partnerships and corporations which meet the following conditions may be formed as a vehicle for the practice of landscape architecture:
(a) The practice of or offer to practice landscape architecture for others as defined in Section 40-28-10 by individual landscape architects licensed under this chapter through a corporation as officer, employees, or agents, or through a partnership as partners, officers, employees, or agents, or the offering or rendering of landscape architecture services by corporation or partnership through individual landscape architects licensed under this chapter is permitted, subject to the provisions of this chapter if (i) one or more of the corporate officers in the case of a corporation, or one or more of the partners in the case of a partnership, are designated as being responsible for the professional services described in Section 40-28-10 of the corporation or partnership and are landscape architects under this chapter; and (ii) all personnel of the corporation or partnership, who act in its behalf as landscape architects, are licensed under this chapter; and (iii) the corporation or partnership has been issued a certificate of authorization by the department. The requirements of this chapter do not prevent a corporation and its employees from performing landscape architectural services for the corporation or subsidiary or affiliated corporations.
(b) A corporation or partnership issued a Certificate of Authorization to provide or offer to provide landscape architectural services to the public in this State shall:
(1) submit an initial fee and file with the department, on a form prescribed by the department, a listing of names and addresses of all principals and officers, as well as all principals, officers, agents, and employees, who are in responsible charge of the practice in this State and are licensed to practice landscape architecture in this State;
(2) insure that all documents involving the practice of landscape architecture which are prepared for the use of the corporation or partnership bear the signature and seal of a landscape architect registered and licensed in this State;
(3) advise the department in writing within thirty days of a change in status of a principal, officer, agent, or employee registered and licensed under this chapter;
(4) have a resident landscape architect duly registered to practice in this State in responsible charge of a place of business maintained in this State for the purpose of providing or offering to provide landscape architectural services to the public;
(5) file a form giving current information, as prescribed in (1) above, with the annual renewal fee to be determined by the department.
(c) No corporation or partnership is relieved of responsibility for conduct or acts of its agents, employees, or officers by reason of its compliance with the provisions of this section nor is an individual practicing landscape architecture as defined in Section 40-28-10 relieved of responsibility of landscape architectural services performed by reason of his employment or relationship with the corporation or partnership.
(d) Disciplinary action against a corporation or partnership must be administered in the same manner and on the same grounds as disciplinary action against a registered landscape architect.
Section 40-28-170. A person who, without possessing a valid, unrevoked certificate or license as required by this chapter, uses the title or term `Landscape Architect' in a sign, card, listing, advertisement, or in any other manner states that he is a landscape architect, as defined in this chapter, is guilty of a misdemeanor and, upon conviction, fined not less than fifty dollars nor more than five hundred dollars or imprisoned for not exceeding six months or both.
Section 40-28-180. Each of the following facts constitutes a ground for disciplinary action against a holder of a license or certificate:
(1) he is practicing in violation of the provisions of this chapter;
(2) he has obtained the certificate or license by fraud or misrepresentation;
(3) he is impersonating a landscape architect or a former landscape architect of the same or similar name, or is practicing under an assumed, fictitious, or corporate name;
(4) he has aided or abetted, in the practice of landscape architecture, a person not authorized to practice landscape architecture under the provisions of this chapter;
(5) in the practice of landscape architecture, he has been guilty of fraud or deceit, negligence, wilful misconduct, or gross incompetence;
(6) he has affixed his seal to plans, drawings, specifications, or other instruments of service which have not been prepared by him or under his immediate and responsible direction or has permitted his name to be used for the purpose of assisting a person, not a landscape architect, to evade the provisions of this chapter.
Section 40-28-190. The department annually shall prescribe reasonable fees, not to exceed the following prescribed limits, in an amount sufficient to pay for the costs of administering the provisions of this chapter in the following categories:
(1) Initial license fee 50.00
(2) Annual license renewal fee 100.00
(3) Initial certificate of
authorization fee 200.00
(4) Annual certificate of
authorization renewal fee 200.00
(5) Temporary license fee 100.00
(6) Initial examination fee
Cost of exam + 200.00
(7) Examination retake fee
Cost of section(s) + 100.00
(8) File transfer fee 50.00
(9) Duplicate license/certificate
fee 25.00
(10) Late fee 20.00
An additional amount not to exceed one hundred dollars may be charged each out-of-state applicant in each of the above categories.
Section 40-28-200. (A) Every landscape architect shall pay an annual license fee to the department. The fee is due and payable on the first day of January of each year and becomes delinquent after the thirty-first day of January.
(B) If the annual license fee is not paid before it becomes delinquent, a penalty of twenty dollars must be added to the amount of the fee.
(C) If the annual certificate or license fee and penalty are not paid within ninety days of the expiration date, the landscape architect's certificate or license must be suspended after the expiration of thirty days from the date of mailing of notice of the delinquency by registered or certified mail, return receipt requested, postage prepaid and addressed to the landscape architect at his address as it appears in the records of the department. The notice of delinquency must state that upon the expiration of time allowed his certificate or license must be suspended unless, within time allowed, the annual certificate or license fee and penalty are remitted.
(D) After the certificate or license has been suspended, it may be reinstated upon the payment of the annual renewal fee for each delinquent year, plus the penalty for each year, and such proof of the landscape architect's qualification as required by the department. A landscape architect whose license has been suspended and who was registered by methods other than prescribed in Sections 40-28-110 and 40-28-130, is required to pass a written examination prescribed by the department.
(E) The department shall issue a receipt to each landscape architect promptly upon payment of the annual certificate or license fee.
Section 40-28-210. The Attorney General shall act as legal advisor to the department and render such legal assistance as may be necessary in carrying out the provisions of this chapter."
Definition deleted
SECTION 900. Section 40-29-20(6) of the 1976 Code is deleted.
Powers of the board
SECTION 901. Section 40-29-50 of the 1976 Code is amended to read:
"Section 40-29-50. The board shall:
(1) annually elect by majority vote a chairman and vice-chairman from its membership. Not more than one individual associated with the manufactured housing industry may hold the position of chairman or vice-chairman at the same time;
(2) establish by regulation classifications of licenses and qualifications and examinations necessary for licensure under this chapter;
(3) issue licenses, and suspend or revoke for cause a license;
(4) establish, by regulation, the manner in which each consumer is notified of:
(a) warranties according to this chapter;
(b) the existence of the board and procedures for the filing of complaints;
(5) invoke fines or adjust surety bonding or other approved security requirements for cause in accordance with this chapter;
(6) receive and resolve complaints from buyers of manufactured homes;
(7) conduct hearings regarding any violations of this chapter or regulations;
(8) adopt regulations relating to the construction, repair, modification, installation, tie-down, hookup, and sale of all manufactured homes, which regulations must be uniform throughout the state and enforced by inspectors for the board to insure minimum standards of safety within the state and its political subdivisions. Ordinances of a political subdivision, relating to installation or sale of manufactured homes may not be inconsistent with a regulation or standard adopted pursuant to this chapter;
(9) adopt regulations and standards necessary to carry out the provisions of this chapter;
(10) adopt by regulation the standards contained in the Construction and Safety Standards Act;
(11) adopt by regulation the manufactured home procedural and enforcement regulations 24 C.F.R. 3282, as amended, promulgated by the Department of Housing and Urban Development pursuant to the Construction and Safety Standards Act;
(12) enter into cooperative agreements with federal agencies relating to manufactured housing and accept and use federal grants, matching funds, or other financial assistance to further the purposes of this chapter;
(13) adopt regulations for the conducting of hearings and the presentation of views, consistent with the regulations promulgated by the Department of Housing and Urban Development, 24 C.F.R. 3282.151 through 3282.156, as amended; and
(14) prepare, administer and grade examinations for licensure under the classifications sought by the applicant and collect fees."
Licenses
SECTION 902. Section 40-29-100(B) of the 1976 Code is amended to read:
"(B) All licenses must be granted or refused within thirty days after proper and complete application. All licenses expire June thirtieth of each year following the date of issue, unless sooner revoked or suspended. An applicant for licensing shall:
(1) demonstrate financial responsibility as required by regulations of the board;
(2) not have engaged illegally in the licensed classification;
(3) demonstrate familiarity with the regulations adopted by the board concerning the classification for which application is made;
(4) if a corporation, have complied with the laws of South Carolina regarding qualification for doing business in this State or have been incorporated in South Carolina and have and maintain a registered agent and a registered office in this State;
(5) if an individual or partnership, have maintained a residence or street address in South Carolina for at least thirty days before the date of application;
(6) submit proof of registration with the South Carolina Department of Revenue and Taxation and submit a current tax identification number; and
(7) where applicable pass an examination administered by the board in the license classification for which application is made."
Examination required
SECTION 903. Section 40-29-110 of the 1976 Code is amended to read:
"Section 40-29-110. (A) No manufactured home salesman may be issued a license for the first time until he has passed with a satisfactory score, an examination prepared, graded, and administered by the board. The examination, where applicable, must determine the applicant's:
(1) general business knowledge;
(2) technical knowledge and familiarity with the prescribed standards;
(3) general knowledge of the statutes and regulations of this State relating to the advertising, sale, and financing of manufactured homes.
(B) No license may be issued to a manufactured home dealer unless the board is satisfied that the authorized official, stockholder, copartner, or manufactured home salesman authorized to sell by authority of the dealer license has passed successfully the appropriate examination.
(C) If a license lapses over six months, in order to be relicensed the applicant is required to be examined or reexamined before issuance of the license sought.
(D) Fees for examinations must be established by regulations promulgated by the board."
Penalty
SECTION 904. Section 40-29-160 of the 1976 Code is amended to read:
"Section 40-29-160. A person selling or offering for sale manufactured homes in the state without a valid license to sell or offer for sale the homes or a person who employs a person selling or offering for sale manufactured homes in this State without a valid license to sell or offer for sale the homes is subject to an administrative penalty. The person must be issued a citation directing him to appear before an agent of the board appointed to act as the administrative hearing officer. An administrative penalty not to exceed five hundred dollars for each violation may be imposed. The person to whom a citation has been issued may forfeit appearance by payment of the imposed administrative penalty.
Upon appearance, if it is determined that an administrative penalty must be imposed, the person cited may appeal the decision to the board. The request for appeal must be in writing.
A licensee who violates a provision of this chapter or regulation in regard to consumer complaints shall upon citation by the board appear before an agent of the board appointed to act as administrative hearing officer for a hearing which may result in the imposition of the following administrative penalties:
(1) for a first offense, a fine of not more than five hundred dollars or a license suspension of not more than thirty days, or both;
(2) for a second offense, a fine of not more than one thousand dollars or suspension of not more than sixty days, or both;
(3) for a third offense, a fine of not more two thousand dollars or a license suspension of not more than ninety days, or both. The licensee must be given at least thirty days' notice of the time and place of the hearing and of the charges. A person aggrieved by a ruling of the administrative hearing officer may appeal to the board within fifteen days after the ruling. The request for appeal must be in writing. The board shall state in writing its findings and determinations after the appeal and its decision in the matter. Appeals from the decision of the board are to an administrative law judge as provided under Article 5 of Chapter 23 of Title 1.
A licensee who violates any other provisions of this chapter or regulations promulgated by its authority or accumulates three or more consumer complaints or violations which have not been corrected within the prescribed time upon citation of the board shall appear before the board for a hearing which may result in:
(1) a fine of not more than two thousand five hundred dollars or license suspension or revocation for not more than one year;
(2) increase in surety bonding or other approved security requirements. The licensee must be given at least thirty days' notice of the time and place of the hearing and of the charges. A person aggrieved by a ruling of the board may appeal to an administrative law judge as provided under Article 5 of Chapter 23 of Title 1."
Board to oversee complaints
SECTION 905. Section 40-29-210 of the 1976 Code is amended to read:
"Section 40-29-210. The board shall oversee the handling of manufactured home consumer complaints that may be due to electrical, mechanical, or structural defects or nonconformances to the Construction and Safety Standards Act, standards and regulations. As part of this responsibility, the manufactured home manufacturers must be inspected and monitored for compliance with federal manufactured home standards and regulations. In the conduct of its responsibilities under this section, the board shall recognize the need for life safety requirements as a part of its general oversight function and shall receive advice in the life safety area from the State Fire Marshal to insure that fire prevention is a part of the overall program under the terms of this chapter."
Director to employ personnel
SECTION 906. Section 40-33-250 of the 1976 Code is amended to read:
"Section 40-33-250. The Director of the Department of Labor, Licensing, and Regulation, or his designee, pursuant to Section 40-73-15, shall appoint and employ a qualified person to serve as executive director, and shall fix his compensation and define his duties. The executive director of the board shall have the power to make contracts, with board approval, for the furtherance of the board's functions and the management of the office. The director, or his designee, may employ such other persons as may be necessary to carry on the board's work. The salaries of employees and necessary expenses incurred in the performance of their duties shall be paid out of funds held by the board."
Review by administrative law judge
SECTION 907. Section 40-33-931 of the 1976 Code is amended to read:
"Section 40-33-931. A decision by the board to revoke, suspend, or otherwise discipline a licensee must be by majority vote of the total membership of the board and is subject to review by an administrative law judge as provided under Article 5 of Chapter 23 of Title 1. A decision by the board to revoke, suspend, or otherwise restrict a license or to limit or otherwise discipline a licensee becomes effective upon delivery of a copy of the decision to the licensee and a petition for review does not operate as a supersedeas."
Board to apply to administrative law judge
SECTION 908. Section 40-33-960 of the 1976 Code is amended to read:
"Section 40-33-960. For the purpose of any investigation or proceeding under the provisions of this chapter, the board or any person designated by it may administer oaths and affirmations, subpoena witnesses, take evidence, and require the production of any documents or records which the board deems relevant to the inquiry. In the case of contumacy by, or refusal to obey a subpoena issued to any person, an administrative law judge as provided under Article 5 of Chapter 23 of Title 1, upon application by the board, may issue an order requiring the person to appear before the board or the person designated by it and produce documentary evidence and to give other evidence concerning the matter under inquiry. Whenever the board has reason to believe that any person is violating or intends to violate any provision of this chapter, it may, in addition to all other remedies, order such person to immediately desist and refrain from such conduct. The board may apply to an administrative law judge as provided under Article 5 of Chapter 23 of Title 1 for an injunction restraining the person from such conduct. The examiner may issue a temporary injunction ex parte, and upon notice and full hearing may issue any other order in the matter it deems proper. No bond shall be required of the board by the examiner as a condition to the issuance of any injunction or order contemplated by the provisions of this section."
Decision of board
SECTION 909. Section 40-35-70 of the 1976 Code is amended to read:
"Section 40-35-70. The board shall elect from its membership a chairman, vice chairman, and secretary-treasurer. The members of the board must be compensated for their services at the regular per diem rate established by law for other state boards, committees, and commissions and may be reimbursed for actual and necessary expenses incurred in connection with and as a result of their work as members of the board. The Director of the Department of Labor, Licensing, and Regulation, pursuant to Section 40-73-15, may employ and establish the duties of necessary personnel to assist the board in the performance of its duties."
Revocation, etc., by majority vote
SECTION 910. Section 40-35-135 of the 1976 Code is amended to read:
"Section 40-35-135. (A) Every communication, whether oral or written, made by or on behalf of a person, to the board or a person designated by it to investigate or hear matters relating to the revocation, suspension, or other restriction of a license or the limitation on or other discipline of a licensee, whether by way of complaint or testimony, is privileged, and no action or proceeding, civil or criminal, shall lie against the person, by or on whose behalf the communication is made, except upon proof that the communication was made with malice.
No part of this article may be construed as prohibiting the respondent or his legal counsel from exercising the respondent's constitutional right of due process under the law, nor as prohibiting the respondent from normal access to the charges and evidence filed against him as part of due process under the law.
(B) A decision by the board to revoke, suspend, or otherwise discipline a licensee must be by majority vote of the total membership of the board and is subject to review by an administrative law judge as provided under Article 5 of Chapter 23 of Title 1."
Board may deny or refuse license
SECTION 911. Section 40-36-160 of the 1976 Code is amended to read:
"Section 40-36-160. (1) The board may deny or refuse to renew a license or may suspend or revoke a license or may impose probationary conditions where the licensee or applicant is likely to endanger the health, welfare or safety of the public. Such unprofessional conduct shall include:
(a) Obtaining a license by means of fraud, misrepresentation or concealment of material facts.
(b) Being guilty of unprofessional conduct as defined by the rules established by the board or violating the Code of Ethics adopted and published by the board.
(c) Being convicted of a felony or a crime involving moral turpitude.
(2) Such denial, refusal to renew, suspension or revocation of a license or imposition of probationary conditions upon a licensee may be ordered by the board in a decision made after a hearing in the manner provided by the rules adopted by the board. A transcribed record of the hearing shall be made. No sooner than one year from the date of the revocation of a license application may be made to the board for reinstatement. The board shall have discretion to accept or reject an application for reinstatement and may hold a hearing to consider such reinstatement.
(3) Any licensee or applicant aggrieved by a decision of the board under this section may appeal such decision to an administrative law judge as provided under Article 5 of Chapter 23 of Title 1 on the record made before the board."
Administrative law judge
SECTION 912. Section 40-37-50 of the 1976 Code is amended to read:
"Section 40-37-50. The South Carolina Board of Examiners in Optometry may adopt an official seal, prescribe regulations and bylaws for its proceedings and government and for the practice of optometry and for the examination of applicants for the practice of optometry. The board or any member thereof may administer oaths for all purposes requiring the discharge of its duties. For the purpose of any investigation or proceeding under the provisions of this chapter, the board or any person designated by it may subpoena witnesses, take evidence, and require the production of any documents or records which the board deems relevant to the inquiry. In the case of contumacy by or refusal to obey a subpoena issued to any person, an administrative law judge as provided under Article 5 of Chapter 23 of Title 1, upon application of the board may issue an order requiring the person to appear before the board, or a person designated by it, and produce documentary evidence and to give other evidence concerning the matter under inquiry."
Review by administrative law judge
SECTION 913. Section 40-37-230 of the 1976 Code is amended to read:
"Section 40-37-230. If the board shall be satisfied that the optometrist is guilty of any offense charged in the formal accusation provided for in this chapter, it shall thereupon revoke, suspend, reprimand, or otherwise take any other reasonable action short of revocation or suspension, such as requiring the licensee to undertake additional professional training subject to the direction and supervision of the board. The board may also impose such restraint upon the licensee as circumstances warrant until the licensee demonstrates to the board adequate professional competence. In all cases where disciplinary action is taken by the board, written notice of such action shall then be mailed by the secretary of the board to the accused at his last known address as provided to the board. Any decision by the board to revoke, suspend, or otherwise restrict the license shall be by majority vote of the entire board qualified and serving at the time and shall be subject to review by an administrative law judge as provided under Article 5 of Chapter 23 of Title 1 upon petition filed by the licensee with an administrative law judge as provided under Article 5 of Chapter 23 of Title 1 and a copy thereof served upon the secretary of the board within thirty days from the date of delivery of the board's decision to the licensee. Such review shall be limited to the record established by the board's hearing."
Regulations
SECTION 914. Section 40-38-60 of the 1976 Code is amended to read:
"Section 40-38-60. The board may promulgate regulations and bylaws for its own proceedings and government and for the practice of opticianry and examination of applicants for the practice of opticianry. The board or any member may administer oaths for all purposes requiring the discharge of its duties. For the purpose of any investigation or proceeding under the provisions of this chapter, the board or any person designated by it may subpoena witnesses, take evidence, and require the production of any documents or records which it deems relevant to the inquiry. In the case of contumacy by or refusal to obey a subpoena issued to any person, an administrative law judge as provided under Article 5 of Chapter 23 of Title 1, upon application of the board, may issue an order requiring the person to appear before the board, or a person designated by it, and produce documentary evidence, and to give other evidence concerning the matter under inquiry."
Review by judge
SECTION 915. Section 40-38-230 of the 1976 Code is amended to read:
"Section 40-38-230. If the board shall be satisfied that the optician is guilty of any offense charged in the formal accusation provided for in this chapter, it shall revoke, suspend, reprimand, or otherwise take any other reasonable action short of revocation or suspension, such as requiring the licensee to undertake additional professional training subject to the direction and supervision of the board. The board may also impose such restraint upon the licensee as circumstances warrant until the licensee demonstrates to the board adequate professional competence. In all cases where disciplinary action is taken by the board, written notice of such action shall then be mailed by the secretary of the board to the accused at his last known address as provided to the board.
Any decision by the board to revoke, suspend, or otherwise restrict the license shall be by majority vote and shall be subject to review by an administrative law judge as provided under Article 5 of Chapter 23 of Title 1. Such review shall be limited to the record established by the board's hearing."
Judge may issue injunction
SECTION 916. Section 40-43-135 of the 1976 Code is amended to read:
"Section 40-43-135. The responsibility for the enforcement of the provisions of this chapter is vested in the Board of Pharmacy. The board has all of the duties, powers, and authority granted by and necessary to the enforcement of this chapter. The board shall regulate the practice of pharmacy. Its duties include, but are not limited to, determining the ethical and professional competence, on a continuing basis through continuing education, of pharmacists and for disciplining them and the compounding, dispensing, and sale of drugs and the required recordkeeping for the sale of drugs. However, the board's inspection authority over the inpatient pharmacy of a hospital applies only to recordkeeping activities of drugs dispensed by the pharmacy. Further, the responsibility for inspections of the hospital inpatient pharmacy is delegated to the Department of Health and Environmental Control as part of its licensing process. These inspections must be conducted by a licensed pharmacist. The board shall regulate the operation of drug outlets including, but not limited to, the compounding, manufacturing, sale, and distribution of drugs bearing the legend `Caution - federal law prohibits dispensing without a prescription'. In so doing, the board shall make, publish, supervise, and enforce regulations for the operation of drug outlets, including the operation of pharmacies, the inspection of weights and measures used in the prescription departments of pharmacies, the compounding, dispensing and sale of drugs, medicines, poisons, and prescriptions, and the necessary recordkeeping. It shall prescribe minimum standards for technical equipment, sanitation, reference materials, and the currently dated inventory of drugs in all drug outlets. When the board has reason to believe that any person is violating or intends to violate any provisions of this chapter it may, in addition to all other remedies, order the person to immediately refrain from the conduct. The board may apply to an administrative law judge as provided under Article 5 of Chapter 23 of Title 1 for an injunction restraining the person from the conduct. An administrative law judge as provided under Article 5 of Chapter 23 of Title 1 may issue a temporary injunction ex parte and upon notice and full hearing may issue any other order in the matter it considers proper. No bond is required from the board by an administrative law judge as a condition to the issuance of any injunction or other action contemplated by the provisions of this section. Nothing in this section authorizes the board to make regulations concerning the prices of goods or drugs sold by outlets, the hours that the businesses may be operated, or the hours of work of the employees of the businesses."
Review by judge
SECTION 917. Section 40-43-260 of the 1976 Code is amended to read:
"Section 40-43-260. A. The board may, after a hearing and upon proof that grounds exist, order the revocation or suspension of a license, publicly or privately reprimand the holder of a license or take any other reasonable action short of revocation or suspension, such as requiring the licensee to undertake additional professional training subject to the direction and supervision of the board. The board may also impose such restraint upon the practice of the licensee as circumstances warrant until the licensee demonstrates to the board adequate professional competence. Any action of the board relating to the revocation or suspension of a license, or other action either restricting a license or limiting or otherwise disciplining a licensee, shall be taken only after a written complaint of misconduct has been filed with the board in accordance with the Administrative Procedures Act (Act 176 of 1977) (Sections 1-23-10 et seq.) and regulations promulgated by it. If a complaint is not dismissed, in accordance with subsection B, a hearing shall be held.
B. Upon its review, the board may either dismiss the complaint or find that the licensee is guilty of misconduct meriting sanction. In either event, the board shall file a final certified report of the proceedings before it with the secretary of the board and the secretary shall forthwith notify the complainant and the licensee and their counsel of such action.
C. Any decision by the board to revoke, suspend or otherwise restrict a license or limit or otherwise discipline a licensee shall be by majority vote of the board members and shall be subject to review by an administrative law judge as provided under Article 5 of Chapter 23 of Title 1 upon petition filed by the licensee with the administrative law judge and a copy served upon the secretary of the board within thirty days from the date of delivery of its decision to the licensee. Such review shall be limited to the record established by the board hearing.
D. Any decision by the board to revoke, suspend or otherwise restrict a license or limit or otherwise discipline a licensee shall become effective upon delivery of a copy of such decision to the licensee and a petition for review by an administrative law judge shall not operate as a supersedeas.
E. Misconduct, which constitutes grounds for revocation, suspension or other restriction of a license or a limitation on or other discipline of a licensee shall be satisfactory showing to the board of any of the following:
(1) That any false, fraudulent or forged statement or document has been used or any fraudulent, deceitful or dishonest act has been practiced by the holder of a license in connection with any of the licensing requirements.
(2) That the holder of a license has been convicted of a felony or any other crime involving fraud, drugs or any of the laws relating to controlled substances, intoxicating liquors or the unlawful sales of dangerous drugs as prohibited by the Federal Food, Drug and Cosmetic Act.
(3) That the holder of a license uses alcohol or drugs to such a degree as to render him unfit to practice pharmacy.
(4) That the holder of a license has been convicted of the illegal or unauthorized practice of pharmacy.
(5) That the holder of a license has knowingly performed any act which in any way assists an unlicensed person to violate any provisions of the pharmacy laws.
(6) That the holder of a license has sustained any physical or mental disability, as determined by a physician, which renders further practice by him dangerous to the public.
(7) That the holder of a license is guilty of engaging in any dishonorable, unethical or unprofessional conduct that is likely to deceive, defraud or harm the public.
(8) That the holder of a license is guilty of the use of any intentionally fraudulent statement in any document connected with the practice of pharmacy.
(9) That the holder of a license is guilty of obtaining fees or assisting in obtaining such fees under intentionally fraudulent circumstances.
(10) That the holder of a license has intentionally violated or attempted to violate, directly or indirectly, or is assisting in or abetting the violating or conspiring to violate any provisions or terms of this chapter.
(11) That the holder of a license has been found by the board to lack the ethical or professional competence to practice pharmacy.
(12) That the holder of a license has practiced pharmacy while under the influence of alcohol, drugs or other intoxicants.
F. In addition to all other remedies and actions incorporated in this section, the license of any pharmacist adjudged mentally incompetent by any court of competent jurisdiction shall be automatically suspended by the board until the pharmacist is adjudged by a court of competent jurisdiction or in any other manner provided by law as being restored to mental competency."
Appeal to judge
SECTION 918. Section 40-43-410 of the 1976 Code is amended to read:
"Section 40-43-410. Any person to whom the Board of Pharmacy has refused to issue a permit, or whose permit has been revoked, suspended, or canceled, may appeal from the decision and order of the board to an administrative law judge as provided under Article 5 of Chapter 23 of Title 1 at any time within thirty days after the date of the receipt of the action taken by the board. No order of revocation, suspension, or cancellation of a permit is effective until the decision and order become final."
Review by judge
SECTION 919. The 1976 Code is amended by adding:
"Section 40-45-260. Any decision by the board to revoke, suspend or otherwise restrict a license or limit or otherwise discipline a licensee shall be by majority vote of the board members and shall be subject to review by an administrative law judge as provided under Article 5 of Chapter 23 of Title 1 upon petition filed by the licensee with an administrative law judge as provided under Article 5 of Chapter 23 of Title 1 and a copy served upon the secretary of the board within thirty days from the date of delivery of its decision to the licensee. Such review shall be limited to the record established by the board hearing."
Review by judge
SECTION 920. Section 40-47-170 of the 1976 Code is amended to read:
"Section 40-47-170. Any action of the board relating to the granting, refusal or cancellation of a license, or any other official action of the board relating to a license or licensee hereunder, shall be subject to review by an administrative law judge as provided under Article 5 of Chapter 23 of Title 1 on the record of the board, as in certiorari, upon petition of the applicant or licensee within ten days from receipt of official notice from the board of the action of which review is sought. Service of such notice shall be conclusively presumed ten days after mailing by registered or certified mail to such applicant or licensee of such notice at such person's last known address."
Review by judge
SECTION 921. The fifth paragraph in Section 40-47-200 of the 1976 Code is amended to read:
"Any decision by the board to revoke, suspend, or otherwise restrict a license or to limit or otherwise discipline a licensee must be by majority vote of the total membership of the board. Any licensee against whom disciplinary action is taken pursuant to the provisions of this article has the right to judicial review. Any disciplinary action is subject to review by an administrative law judge as provided under Article 5 of Chapter 23 of Title 1 upon petition filed by the licensee with an administrative law judge and a copy of the petition served upon the secretary of the board within thirty days from the date of delivery of the board's decision to the licensee. An appeal taken to an administrative law judge as provided under Article 5 of Chapter 23 of Title 1 has precedence on the calendar of an administrative law judge, is considered an emergency appeal if the board has revoked, suspended, or otherwise restricted a license for more than six months, and should be heard not later than thirty days from the date the petition is filed. The review is limited to the record established by the board hearing.
No stay or supersedeas may be granted pending appeal from a decision by the board to revoke, suspend, or otherwise restrict a license for more than six months."
Subpoena of judge
SECTION 922. Section 40-47-210 of the 1976 Code is amended to read:
"Section 40-47-210. For the purpose of any investigation or proceeding under the provisions of this article, the board or any person designated by it may administer oaths and affirmations, subpoena witnesses, take evidence, and require the production of any documents or records which the board deems relevant to the inquiry. In the case of contumacy by, or refusal to obey a subpoena issued to any person, an administrative law judge as provided under Article 5 of Chapter 23 of Title 1, may issue an order requiring the person to appear before the board or the person designated by it and produce documentary evidence and to give other evidence concerning the matter under inquiry.
Whenever the board has reason to believe that any person is violating or intends to violate any provision of this article, it may, in addition to all other remedies, order such person to immediately desist and refrain from such conduct. The board may apply to an administrative law judge as provided under Article 5 of Chapter 23 of Title 1 for an injunction restraining the person from such conduct. An administrative law judge may issue a temporary injunction ex parte, and upon notice and full hearing may issue any other order in the matter it deems proper. No bond shall be required of the board by an administrative law judge as a condition to the issuance of any injunction or order contemplated by the provisions of this section."
Director may employ staff
SECTION 923. Section 40-47-570 of the 1976 Code is amended to read:
"Section 40-47-570. The Director of the Department of Labor, Licensing, and Regulation, pursuant to Section 40-73-15, may employ additional staff as necessary for the performance of its duties under this article."
Appeal to judge
SECTION 924. Section 40-47-630 of the 1976 Code is amended to read:
Section 40-47-630. (A) The committee may recommend to the board that it revoke, suspend, issue a public or private reprimand, or impose any other reasonable limitation or practice where the unprofessional, unethical, or illegal conduct of the respiratory care practitioner is likely to endanger the health, welfare, or safety of the public. The conduct includes the following:
(1) use of any false, fraudulent, or forged statement or any fraudulent, deceitful, or dishonest act practiced by the holder of a certificate in connection with any of the certifying requirements;
(2) that the holder of a certificate is addicted to alcohol or drugs to such a degree as to render him unfit to practice respiratory care;
(3) that the holder of a certificate has been convicted of the illegal or unauthorized practice of respiratory care;
(4) that the holder of a certificate has knowingly performed any act which in any way assists an uncertified person to practice respiratory care;
(5) that the holder of a certificate has sustained any physical or mental disability which renders further practice by him dangerous to the public;
(6) that the holder of a certificate has violated the code of ethics or regulations as adopted by the committee and the board;
(7) that the holder of a certificate is guilty of engaging in any dishonorable, unethical, or unprofessional conduct that is likely to deceive or harm the public;
(8) that the holder of a certificate is guilty of the use of any false or fraudulent statement in any document connected with the practice of respiratory care;
(9) that the holder of a certificate has intentionally violated or attempted to violate, directly or indirectly, or is assisting in or abetting the violation or conspiring to violate any provisions of this article;
(10) that the holder of a certificate is guilty of the commission of any act, during the course of practice conducted pursuant to a certificate issued under this article, that constitutes fraud, dishonest dealing, illegality, incompetence, or gross negligence.
(B) The suspension, revocation, reprimand, or imposition of probationary conditions upon a respiratory care practitioner may be recommended by the committee to the board after a hearing is conducted in accordance with the Administrative Procedures Act. A transcribed record of the hearing must be made.
(C) Any respiratory care practitioner aggrieved by a decision of the committee or board under this section may appeal the decision to an administrative law judge as provided under Article 5 of Chapter 23 of Title 1 on the record made before the committee or board."
Subpoena of judge
SECTION 925. Section 40-47-660 of the 1976 Code is amended to read:
"Section 40-47-660. (A) It is unlawful for any person who is not certified under this article to hold himself out as a respiratory care practitioner, respiratory therapist, or a respiratory therapy technician. Any person who holds himself out as a respiratory care practitioner without being certified under this article, during a period of suspension, or after his certificate has been revoked by the board is guilty of a misdemeanor and upon conviction must be fined not more than three hundred dollars or imprisoned for not more than ninety days, or both.
(B) For the purpose of any investigation or proceeding under the provisions of this article, the board or any person designated by it may administer oaths and affirmations, subpoena witnesses, take testimony, and require the production of any documents or records which the board considers relevant to the inquiry. In the case of contumacy by, or refusal to obey a subpoena issued to any person, an administrative law judge as provided under Article 5 of Chapter 23 of Title 1, upon application by the board, may issue an order requiring the person to appear before the board or the person designated by it, produce documentary evidence, and give other evidence concerning the matter under inquiry.
When the board has sufficient evidence that any person is violating any provisions of this article, it may, in addition to all other remedies, order the person to immediately desist and refrain from this conduct. The board may apply to an administrative law judge as provided under Article 5 of Chapter 23 of Title 1 for an injunction restraining the person from this conduct. An administrative law judge may issue a temporary injunction ex parte and upon notice and full hearing may issue any other order in the matter it considers proper. No bond may be required of the board by an administrative law judge as a condition to the issuance of any injunction or order contemplated by the provisions of this section.
(C) Every communication, whether oral or written, made by or on behalf of any person or firm to the board or any person designated by it to investigate or otherwise hear matters relating to the revocation, suspension, or other restriction on a certificate or other discipline of a certificate holder, whether by way of complaint or testimony, is privileged. No action or proceeding, civil or criminal, may lie against the person or firm for the communication except upon proof that the communication was made with malice.
(D) No provision of this article may be construed as prohibiting the respondent or his legal counsel from exercising the respondent's constitutional right of due process under the law nor prohibiting the respondent from normal access to the charges and evidence filed against him as a part of due process under the law."
Review by judge
SECTION 926. Section 40-51-160 of the 1976 Code is amended to read:
"Section 40-51-160. The State Board of Podiatry, if it has reason to believe grounds exist, shall notify a licensee not less than thirty days before a scheduled hearing of its intention to suspend or revoke the license of the licensee. The notice must specify the alleged grounds for suspension or revocation and offer the licensee reasonable opportunity to be heard in answer to the allegations. The decision to suspend or revoke the license must be by majority vote of the total membership of the board. Any decision of the board to revoke or suspend a license is subject to review by an administrative law judge as provided under Article 5 of Chapter 23 of Title 1.
A decision to suspend or revoke a license by the board is effective upon delivery of a copy of the decision to the licensee and a petition for review by an administrative law judge is not a supersedeas. The grounds for revocation or suspension of a license are a satisfactory showing to the board of any of the following:
(1) that any false, fraudulent, or forged statement or document has been used or any fraudulent, deceitful, or dishonest act has been practiced by the holder of a license in connection with any of the licensing requirements;
(2) that the holder of a license has been convicted of a felony or any other crime involving moral turpitude, drugs, or gross immorality;
(3) that the holder of a license is addicted to alcohol or drugs to such a degree as to render the podiatrist unfit to practice podiatry;
(4) that the holder of a license has been convicted of the illegal or unauthorized practice of podiatry;
(5) that the holder of a license has knowingly performed any act which in any way assists an unlicensed person to practice podiatry;
(6) that the holder of a license has sustained any physical or mental disability which renders further practice by the podiatrist dangerous to the public;
(7) that the holder of a license has engaged in advertising for the practice of podiatry in a manner that is deceptive or untruthful;
(8) that the holder of a license is guilty of the performance of any dishonorable, unethical, or unprofessional conduct that is likely to deceive, defraud, or harm the public;
(9) that the holder of a license is guilty of the use of any false or fraudulent statement in any document connected with the practice of podiatry;
(10) that the holder of a license is guilty of obtaining fees or assisting in obtaining fees under dishonorable, false, or fraudulent circumstances;
(11) that the holder of a license has violated or attempted to violate, directly or indirectly, or is assisting in or abetting the violation, or conspiring to violate, any provisions or terms of the podiatry practice laws.
In addition to all other remedies and actions incorporated in this article, the license of any person adjudged mentally incompetent by any court of competent jurisdiction is automatically suspended by the board until he is adjudged by a court of competent jurisdiction or in any other manner provided by law as being restored to mental competency."
Subpoena by judge
SECTION 927. Section 40-55-140 of the 1976 Code is amended to read:
"Section 40-55-140. No member of the board, or its committees, special examiners, agents and employees shall be held liable for acts performed in the course of official duties except where actual malice is shown. For the purpose of any investigation or proceeding under the provisions of this chapter, the board or any person designated by it may administer oaths and affirmations, subpoena witnesses, take evidence, and require the production of any documents or records which the board deems relevant to the inquiry. In the case of contumacy by, or refusal to obey a subpoena issued to any person, an administrative law judge as provided under Article 5 of Chapter 23 of Title 1, may issue an order requiring the person to appear before the board or the person designated by it and produce documentary evidence and to give other evidence concerning the matter under inquiry.
Any final order of the board finding that a psychologist is guilty of any offense charged in a formal accusation shall become public knowledge except for a final order dismissing the accusation or determining that a private reprimand is in order. All final orders which are made public shall be mailed to local and state psychological associations, and all hospitals with which the respondent is associated, states where the psychologist has a license as known to the board, and to any other source that the board wishes to furnish this information."
Review by judge
SECTION 928. Section 40-55-160 of the 1976 Code is amended to read:
"Section 40-55-160. If the board shall be satisfied that the psychologist is guilty of any offense charged in the formal accusation provided for in this chapter, it shall thereupon revoke or suspend his license, reprimand, or otherwise take any other reasonable action short of revocation or suspension, such as requiring the licensee to undertake additional professional training subject to the direction and supervision of the board. The board may also impose such restraint upon the licensee as circumstances warrant until the licensee demonstrates to the board adequate professional competence. In all cases where disciplinary action is taken by the board, written notice of such action shall then be mailed by the secretary of the board to the accused at his last known address as provided to the board.
Any decision by the board to revoke, suspend, or otherwise restrict the license shall be by majority vote and shall be subject to review by an administrative law judge as provided under Article 5 of Chapter 23 of Title 1 upon petition filed by the licensee with an administrative law judge thereof served upon the secretary of the board within thirty days from the date of delivery of the board's decision to the licensee. Such review shall be limited to the record established by the board's hearing."
Director of department to employ personnel
SECTION 929. Section 40-56-10 of the 1976 Code is amended to read:
"Section 40-56-10. There is created the State Board of Pyrotechnic Safety to be composed of six members appointed by the Governor. One of the appointees must be a fireman, one must be a pyrotechnics retailer, one must be a law enforcement representative, and three must be members of the public who shall not possess any pecuniary interest in any entity engaged in a business directly involving the sale of pyrotechnics. The board shall elect from its members a chairman, vice-chairman, and such other officers as it may consider necessary to serve for terms of one year and until their successors are elected and qualify. Terms of office for members are for two years and until their successors are appointed and qualify. Vacancies must be filled in the manner of original appointment for the unexpired term. The board shall meet at least annually and not more than once per month. All meetings must be scheduled at the call of the chairman. All members shall receive mileage, per diem, and subsistence as provided by law for members of boards, committees, and commissions for days on which they are transacting official business, to be paid from the general fund of the state. The Director of the Department of Labor, Licensing, and Regulation, pursuant to Section 40-73-15, shall employ such personnel as necessary to carry out the duties of the board."
Provisions deleted regarding regulations
SECTION 930. Section 40-56-20 of the 1976 Code is amended to read:
"Section 40-56-20. It shall be the duty and responsibility of the board created in Section 40-56-10 to promulgate regulations relating to the sale of pyrotechnics in this State including the storage and fire safety of such products. The board shall also recommend to the General Assembly legislation it deems necessary for the safety and control of the sale of pyrotechnics."
Commissioner may apply to judge
SECTION 931. Section 40-57-170 of the 1976 Code is amended to read:
"Section 40-57-170. (A) The commissioner may upon his own motion or a verified complaint together with evidence, documentary or otherwise, presented in connection therewith, making out a prima facie case, investigate the actions of any real estate broker, counsellor, salesman, auctioneer, property manager, or any person who has unlawfully assumed to act in either capacity within this State and has the power to suspend, revoke, and cancel any license issued under the provisions of this chapter and assess fines at any time where the licensee has by material misrepresentation obtained a license, or where the licensee is found by the commissioner to be guilty of any of the following acts:
(1) making any substantial misrepresentation;
(2) making any false promises of a character likely to influence, persuade, or induce;
(3) pursuing a continued and flagrant course of misrepresentation, or making false promises through agents or salesmen or any medium of advertising, or otherwise;
(4) any conduct in a real estate transaction which demonstrates bad faith, dishonesty, untrustworthiness, or incompetency in a manner as to endanger the interest of the public;
(5) acting for more than one party in a transaction without the knowledge of all parties for whom he acts;
(6) acting in the dual capacity of broker and undisclosed principal in any transaction;
(7) representing or attempting to represent, if a salesman, a real estate broker other than his employer without the express knowledge and consent of his employer;
(8) guaranteeing or authorizing or permitting any person to guarantee future profits which may result from the resale of real property;
(9) making of dual sets of contracts, written or otherwise, which would falsify the transaction by stating a sales price higher than the actual sales price in an effort to obtain a larger loan from any lender or lending institution or for the purpose of misinforming any governmental agency;
(10) being convicted in any court of competent jurisdiction of this State, any other state, or any federal court of forgery, embezzlement, breach of trust, larceny, obtaining money or property under false pretense, extortion, fraud, conspiracy to defraud, or any other offense involving moral turpitude, or pleading guilty or nolo contendere to any such offense;
(11) failing, within a reasonable time, to account for or to remit any monies coming into his possession which belong to others;
(12) paying a commission or compensation to any person for performing the services of a real estate broker, salesman, or property manager who has not first secured his license under the South Carolina Real Estate Licensing Act. A South Carolina licensed broker may pay a part of his commission on a cooperative basis to a licensed broker of another state if the nonresident broker does not conduct in this State any of the negotiations for which a fee, compensation, or commission is paid;
(13) failing, if a broker, to place, as soon after receipt as is practicably possible, any deposit money or other money received by him in a real estate transaction in a separate real estate trust or escrow account maintained by him in a banking institution authorized to do business in this State, wherein the funds must be kept until the transaction is consummated or otherwise terminated, at which time a full accounting thereof must be made by the broker. Records relative to the deposit, maintenance, and withdrawal of the funds must be properly maintained and made available to a representative of the South Carolina Real Estate Commission upon request;
(14) violating any provision of law relating to a buyer's freedom of choice in choosing an attorney, insurance agent, or title insurance agent to handle his real estate transaction;
(15) failing, if a broker or property manager, to deposit all security deposits, damage deposits, advance fees, and rental proceeds received by the broker or property manager on or before the next banking day in a separate escrow or real estate trust account so designated. All these funds except rental proceeds shall remain until the lease or rental transaction expires or is terminated, at which time a full accounting must be made by the broker or property manager. Rental proceeds must be disbursed within a reasonable time after deposit and clearance of the deposit by the bank. Records relative to the receipt, deposit, maintenance, and withdrawal of the funds must be properly maintained and made available to a representative of the South Carolina Real Estate Commission upon request;
(16) failing, if a licensee, to report to the commission in writing by certified mail, return receipt requested, within ten days after receipt by the licensee of those convictions set forth in item (10) of this subsection;
(17) a real estate licensee shall disclose on a form approved by the commission for which party he is acting and may not receive compensation from more than one party except with the full knowledge and consent of all parties;
(18) violating any regulation promulgated by the commission.
(B)(1) The commissioner may make any public or private investigation which he considers necessary to determine whether any person has violated this chapter or any order or regulation hereunder, or to aid in the enforcement of this chapter or in the prescribing of regulations and forms thereunder.
(2) The commissioner may require or permit any person to file a statement in writing, under oath or otherwise as the commissioner determines, as to all facts and circumstances concerning the matter to be investigated.
(3) For the purpose of any investigation or proceeding under this chapter, the commissioner or any officer designated by regulation may administer oaths or affirmations, and upon his own motion or upon request of any party shall subpoena witnesses, compel their attendance, take evidence, and require the production of any matter which is relevant to the investigation, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of relevant facts or any other matter reasonably calculated to lead to the discovery of material evidence.
(4) Upon failure to obey a subpoena or to answer questions propounded by the investigating officer and upon reasonable notice to all persons affected thereby, the commissioner, through the Attorney General, may apply to an administrative law judge as provided under Article 5 of Chapter 23 of Title 1 for an order compelling compliance.
(C) The commissioner may:
(1) Issue an order requiring a person to cease and desist from any unlawful practice and to take such affirmative action as in the judgment of the commissioner will carry out the purposes of this chapter if, after notice and hearing, the commissioner determines that a person has:
(a) violated any provisions of this chapter.
(b) directly or through any agent or employees knowingly engaged in any false, deceptive, or misleading practices in the sale or rental of real estate, including advertising and promotions.
(c) violated any lawful order or rule of the commission.
(2) Make findings of fact in writing that the public interest will be irreparably harmed by delay in issuing an order and in such case may issue a temporary cease and desist order. Prior to issuing the temporary cease and desist order, the commissioner, whenever possible by telephone or otherwise, shall give notice of the proposal to issue a cease and desist order to the person. Every temporary cease and desist order shall include in its terms a provision that upon request a hearing will be held promptly to determine whether or not it becomes permanent."
Appeal from commission
SECTION 932. Section 40-57-220 of the 1976 Code is amended to read:
"Section 40-57-220. Every applicant or licensee aggrieved by a decision of the commissioner in refusing, suspending, or revoking any license or in issuing reprimands provided under the provisions of this chapter may appeal from the decision of the commissioner to the Real Estate Commission by serving notice of appeal upon the commissioner within ten days of receipt of his ruling or decision. The notice of appeal must set forth all grounds upon which the appeal is based. The commissioner shall call a hearing on the matter, which must be confined to the record, and which must be attended by at least five members of the Real Estate Commission, including the member from the congressional district in which the appellant resides and four other members to be selected by the chairman. The commission may affirm the commissioner's ruling or remand the case for further proceedings. Upon request of any party, the commission shall hear oral arguments and receive written briefs. An appeal may be taken from the decision of the commission to an administrative law judge as provided under Article 5 of Chapter 23 of Title 1."
Director may employ executive director
SECTION 933. Section 40-59-50 of the 1976 Code is amended to read:
"Section 40-59-50. The Director of the Department of Labor, Licensing, and Regulation, pursuant to section 40-73-15, may employ an executive director to serve at the discretion of the Director of the Department of Labor, Licensing, and Regulation. The duties of the executive director must be prescribed by the Director of the Department of Labor, Licensing, and Regulation and shall include, but not be limited to, the following:
(a) keep a record of the proceedings of the commission;
(b) receive and account for all monies received by the commission;
(c) keep a register of all applicants for licenses showing for each the date of application, name, qualifications, place of business, place of residence, and whether the license was granted or refused; and
(d) keep a register of all residential specialty contractors doing business in this State showing for each the date of registration, name, place of business, place of residence, and office telephone number. A residential specialty contractor must notify the commission in writing within thirty days of any change in the information required to be on file with the commission.
The executive director shall execute a bond, payable to the commission, for the proper performance of his duties in that sum as the director may require. The director may also employ clerical and stenographic assistance and other personnel as may be necessary to effectuate the provisions of this chapter. The compensation of all employees of the commission must be fixed by the Director of the Department of Labor, Licensing, and Regulation and paid from the fees received by the commission pursuant to the provisions of this chapter."
Executive director to keep records
SECTION 934. Section 40-59-60 of the 1976 Code is amended to read:
"Section 40-59-60. The commission shall meet quarterly and at such other times as the chairman may designate; provided, however, that the commission shall meet within thirty days after appointment for the purpose of organizing and transacting such business as may properly come before it. Four members of the commission shall constitute a quorum at all meetings. The executive director shall keep such records of each meeting as shall be required by the commission."
Appeal to judge
SECTION 935. Section 40-59-90 of the 1976 Code is amended to read:
"Section 40-59-90. The commission may revoke, suspend, or restrict for a period not to exceed one year the license of a residential builder, certificate of a residential specialty contractor, or registration of a residential specialty contractor who, in the opinion of the commission, has committed fraud or deceit in obtaining a license or certificate or in registering as required by the provisions of this chapter or has been guilty of gross negligence, incompetence, or misconduct in the practice of home building or residential specialty contracting. A person, including the commission, may prefer charges of fraud, deceit, negligence, incompetence, or misconduct against a residential builder licensed under this chapter or a residential specialty contractor certified or registered under this chapter. The charges must be made to the commission in writing and sworn to by the person so charging and must be submitted to the executive director of the commission.
The charges, unless dismissed without hearing by the commission as unfounded or trivial, must be heard by the commission in an open hearing within three months after the date on which they were preferred. A copy of the charges, together with notice of the time and place of the hearing, must be served legally on the residential builder or residential specialty contractor charged at least thirty days before the fixed date for the hearing. At the hearing the residential builder or residential specialty contractor charged may appear personally or be represented by counsel and may cross-examine witnesses against him and produce evidence and witnesses in his defense. If, after the hearing, a majority of the commission votes in favor of revoking, suspending, or restricting for a period not to exceed one year the license of the residential builder or the certificate or registration of the residential specialty contractor charged on the basis of fraud or deceit in obtaining his license or certificate or in registering with the commission or gross negligence, incompetence, or misconduct in the performance of home building or residential specialty contracting, the commission shall order the license of the residential builder, the certificate of the residential specialty contractor, or the registration of the residential specialty contractor revoked or suspended or restricted for a period not to exceed one year. After the commission revokes or suspends or restricts for a period not to exceed one year the license of the residential builder or the certificate or the registration of the residential specialty contractor, he has ten days to file with the commission written notice of his intention to appeal to an administrative law judge as provided under Article 5 of Chapter 23 of Title 1 from the order of the commission. All appeals from the order of the commission are governed by the provisions of Article 3, Chapter 23 of Title 1 (the Administrative Procedures Act).
The commission may reissue a license to a residential builder or certificate to a residential specialty contractor whose license or certificate was previously revoked if a majority of the members of the commission vote in favor of the reissuance."
Action to be filed with judge
SECTION 936. Section 40-59-95 of the 1976 Code is amended to read:
"Section 40-59-95. (A) In addition to all other remedies provided by law, when it appears to the executive director, either upon complaint or otherwise, that any person or combination of persons has engaged, or is engaging, in any act of contracting, practice, or transaction which constitutes a violation of this chapter or any regulation or order of the commission, whether or not the person is properly licensed, certified, or registered with the commission, the executive director may either:
(1) serve upon the person not licensed, certified, or registered under the chapter, by certified mail or by personal service, a cease and desist order requiring the person to cease and desist immediately, upon receipt of the notice, from engaging in the act, practice, or transaction. If the person fails to comply with the order, the executive director may file an action with an administrative law judge as provided under Article 5 of Chapter 23 of Title 1 for enforcement of the cease and desist order or file an action pursuant to item (2) of this subsection in the court of common pleas to restrain and enjoin the person from engaging in the act, practice, or transaction and for wilful violation of the order. If the administrative law judge finds that the person wilfully failed to obey a valid cease and desist order, the court shall impose a civil penalty of not less than two hundred fifty dollars nor more than two thousand dollars for each violation. Any amount collected as a civil penalty must be remitted pursuant to subsection (B) of this section;
(2) apply through the Attorney General, the administrator of the Department of Consumer Affairs, the county attorney, or solicitor of the county in which the act, practice, or transaction is alleged to have been committed, to the court of common pleas of that county for an injunction restraining the person from engaging in the act, practice, or transaction or doing any act in furtherance of the act, practice, or transaction. Upon a proper showing, a temporary restraining order, a preliminary injunction, or a permanent injunction may be granted without bond. Process in the action may be served upon the defendant in any county of this State where he transacts business or is found.
(B) In actions brought under item (2) of subsection (A), each violation of this chapter or regulation or order of the executive director constitutes a separate offense and the court may impose a civil penalty not to exceed two thousand dollars for each violation which is in addition to all other penalties provided by law. Fifty percent of the penalty must be remitted to the general fund of the county where the case was tried and fifty percent must be deposited in the state general fund if the violation is prosecuted by the county attorney or solicitor. Seventy-five percent of the penalty must be deposited in the state general fund if the violation is prosecuted by the Attorney General or the administrator of the Department of Consumer Affairs, and twenty-five percent must be remitted to the prosecuting agency for expenses in trying the case."
Petition to judge
SECTION 937. Section 40-59-130 of the 1976 Code is amended to read:
"Section 40-59-130. Any residential builder or residential specialty contractor who undertakes or attempts to undertake the business of residential building or residential specialty contracting without first having procured a valid license or certificate or registered with the commission as required in Section 40-59-50 which has neither expired nor been revoked, or who knowingly presents to, or files with, the commission false information for the purpose of obtaining a license or certificate or becoming registered is guilty of a misdemeanor and, upon conviction, must be fined not less than one hundred dollars or imprisoned for not less than thirty days. A residential builder who does not have a license or residential specialty contractor who is not certified or registered as required may not bring any action either at law or in equity to enforce the provisions of any contract for residential building or residential specialty contracting which he entered into in violation of this chapter.
Whenever it appears to the commission that any residential builder or residential specialty contractor has violated, or is about to violate, the provisions of this chapter, the commission may in its own name petition an administrative law judge as provided under Article 5 of Chapter 23 of Title 1 to issue a temporary restraining order enjoining the violation of this chapter, pending a full hearing to determine whether or not the injunction must be made permanent."
Appeal to judge
SECTION 938. Section 40-60-160 of the 1976 Code is amended to read:
"Section 40-60-160. (A) Whenever a complaint filed with the board involves an appraisal report which varies from a sales, lease, or exchange price the board may in its discretion decline to conduct an investigation.
(B) A person authorized to conduct an investigation on behalf of the board shall have access to and may examine any writings, documents, or other material which may be related to an investigation.
(C) In the conduct of an investigation or proceeding under this chapter, the chairman of the board, the commissioner, or any duly authorized assistant or deputy appointed by the commissioner, may issue subpoenas to compel production of those writings, documents, or material on behalf of the board. After the service of a notice of hearing, the chairman of the board, commissioner, or any duly authorized assistant or deputy appointed by the commissioner may issue subpoenas to compel production of those writings, documents, or material, either on behalf of the board or at the request of a respondent. The commissioner, chairman of the board, the board, or the respondent may apply to an administrative law judge as provided under Article 5 of Chapter 23 of Title 1 for an order requiring compliance. Failure to comply with an order is punishable as for contempt of court.
(D) If technical assistance is required in an investigation due to its complexity, the commissioner may contract on behalf of the board for consultant services provided:
(1) no member of the board or commission obtains financial gain for himself through these consultant services;
(2) no person with whom a member of the board or commission or a member of his household is employed or negotiating or has an arrangement concerning prospective employment, may provide these consultant services.
(E) The results of all investigations may be reported only to the board or to the commissioner and the records of the investigations are not subject to subpoena in civil actions. Records of investigations must be kept by the board and no part of any investigative record may be released for any purpose other than a hearing before the board or its designated hearing officer, review by another law enforcement agency or lawful licensing authority upon issuance of a subpoena from the agency or authority or at the discretion of the board or the commissioner, review by the respondent after the service of a notice of hearing, or an appeal of a decision by the board to an administrative law judge as provided under Article 5 of Chapter 23 of Title 1. After service of a notice of hearing, a respondent has a right to obtain a copy of the investigative record pertaining to the respondent.
(F) Whenever the board issues a disciplinary sanction pursuant to the provisions of this chapter, the board shall publish the sanction in its official newsletter unless the sanction is a private reprimand.
(G) The commissioner shall maintain in his main office a public docket or record, in which he shall record, from time to time as made, the rulings or decisions upon all complaints filed with the board and all investigations instituted by the board, upon or in connection with which any hearing has been held, or in which a state registered real estate appraiser, a state licensed real estate appraiser, or state certified real estate appraiser has made no defense unless the board issues a private reprimand in that instance."
Review by judge
SECTION 939. Section 40-60-170 of the 1976 Code is amended to read:
"Section 40-60-170. (A) Before the board shall impose on any appraiser any sanction permitted by this chapter or deny issuance of a registration, license, or certification to an applicant, it shall provide for a hearing for the appraiser in accordance with the Administrative Procedures Act.
(B) The date of the hearing must not be less than thirty nor more than one hundred twenty days from the date after the appraiser or applicant is notified of the charges against him.
(C) If an appraiser or applicant fails to appear at any hearing after reasonable notice, the board may proceed to hear the evidence against the appraiser or applicant and take action as if the appraiser or applicant had been present. A notice of hearing or final decision of the board in a disciplinary proceeding must be served upon the appraiser or applicant by personal service or by certified mail, return receipt requested, to the last known address of record with the board. If the material is returned marked `unclaimed' or `refused' or is undeliverable and if the appraiser or applicant may not be located after diligent effort, the commissioner is considered to be the agent for the appraiser or applicant for the purposes of this section, and service upon the commissioner is considered service upon the appraiser or applicant.
(D) A decision by the board to revoke or suspend a registration, license, or certification or to restrict, limit, or otherwise discipline a registration, license, or certification holder must be by majority vote of the total membership of the board. A disciplinary action is subject to review by an administrative law judge as provided under Article 5 of Chapter 23 of Title 1 upon petition filed by the registration, license, or certification holder within thirty days from the date of delivery of the board's decision to the registration, license, or certification holder. A copy of the petition must be served upon the commissioner.
(E) A person who has exhausted all administrative remedies available within this chapter and who is aggrieved by a final decision of the board is entitled to judicial review by an administrative law judge as provided under Article 5 of Chapter 23 of Title 1 in accordance with the Administrative Procedures Act. The review is limited to the record established by the board hearing.
(F) No stay or supersedeas may be granted for more than six months pending appeal from a decision by the board to revoke, suspend, or otherwise restrict a license, certification, or registration."
Judicial review of decision
SECTION 940. Section 40-60-210 of the 1976 Code is amended to read:
"Section 40-60-210. (A) The board may issue a cease and desist order prohibiting a person from violating the provisions of this chapter by engaging in the practice of an appraiser without a registration, license, or certification. The cease and desist order is final ten days after it is issued unless the person to whom the order is issued requests a hearing before the board.
(B) The violation of a cease and desist order of the board issued under subsection (A) of this section subjects the person violating the order to further proceedings before the board, and the board is authorized to impose a fine not to exceed one thousand dollars for each transaction constituting a violation of the order. Each day that a person practices in violation of this chapter constitutes a separate violation.
(C) Initial judicial review of the decision of the board entered pursuant to this section is available solely before an administrative law judge as provided under Article 5 of Chapter 23 of Title 1.
(D) Nothing in this section may be construed to prohibit the board from seeking remedies otherwise available by statute without first seeking a cease and desist order in accordance with the provisions of this section."
Board may apply to judge
SECTION 941. Section 40-61-40 of the 1976 Code is amended to read:
"Section 40-61-40. For the purpose of any investigation or proceeding under this chapter, the board or any person designated by it may administer oaths and affirmations, subpoena witnesses, take evidence, and require the production of any documents or records which the board considers relevant to the inquiry. In the case of contumacy by, or refusal to obey a subpoena issued to any person, an administrative law judge as provided under Article 5 of Chapter 23 of Title 1, upon application of the board may issue an order requiring the person to appear before the board or the person designated by it and produce documentary evidence and to give other evidence concerning the matter under inquiry.
Whenever the board has reason to believe that any person is violating or intends to violate any provision of this chapter, it may, in addition to all other remedies, order the person to immediately desist and refrain from such conduct. The board may apply to an administrative law judge as provided under Article 5 of Chapter 23 of Title 1 for an injunction restraining the person from such conduct. An administrative law judge may issue ex parte a temporary injunction not to exceed ten days and upon notice and full hearing may issue any other order in the matter it deems proper. No bond is required of the board by an administrative law judge as a condition to the issuance of any injunction or order contemplated by the provisions of this section."
Review by judge
SECTION 942. Section 40-61-110 of the 1976 Code is amended to read:
"Section 40-61-110. If the board is satisfied that the registered environmental sanitarian is guilty of any offense charged in the formal accusation provided for in this chapter, it must revoke, suspend, reprimand, or otherwise take any other reasonable action short of revocation or suspension, such as requiring the sanitarian to undertake additional professional training subject to the direction and supervision of the board. The board may also impose such restraint upon the sanitarian as circumstances warrant until the sanitarian demonstrates to the board adequate professional competence. In all cases where disciplinary action is taken by the board, written notice of the action must then be mailed by the secretary of the board to the accused at his last known address as provided to the board.
Any final order of the board finding that a registered environmental sanitarian is guilty of any offense charged in a formal accusation shall become public knowledge except for a final order dismissing the accusation or determining that a private reprimand is in order. All final orders which are made public must be mailed to local and state associations, and all registered environmental sanitarians with which the respondent is associated, states where the registered environmental sanitarian has a certificate as known to the board, and to any other source that the board wishes to furnish this information.
Any decision by the board to revoke, suspend, or otherwise restrict the certificate must be by majority vote and is subject to review by an administrative law judge as provided under Article 5 of Chapter 23 of Title 1 upon petition filed by the sanitarian with an administrative law judge and a copy served upon the secretary of the board within thirty days from the date of delivery of the board's decision to the sanitarian. The review is limited to the record established by the board's hearing."
Board may employ staff
SECTION 943. Section 40-63-10 of the 1976 Code is amended to read:
"Section 40-63-10. There is created the State Board of Social Work Examiners to be composed of seven members appointed by the Governor, with the advice and consent of the Senate, including one lay member, two licensed baccalaureate social workers, three licensed master social workers, and one licensed independent social worker. All members must be residents of the state and the social workers must have been in the active practice of social work for at least five years prior to appointment. The terms of the members are for four years and until their successors are appointed and qualify. Members of the board are eligible for reappointment but may not serve more than two consecutive terms. The board may employ such staff, pursuant to Section 40-73-15, as the Director of the Department of Labor, Licensing, and Regulations deems necessary to carry out the duties and functions of the board. The board is responsible for examining applicants for social work licenses, investigating complaints, and investigating and prosecuting violations of this chapter. The board may promulgate regulations to carry out the provisions of this chapter. The Governor may remove a member who is guilty of continued neglect of his duties or who is incompetent or unprofessional. No member may be removed without an opportunity to refute the charges filed against him. He must be given a copy of the charges at the time they are filed. Vacancies on the board must be filled by appointment by the Governor for the unexpired portion of the term."
Judge may issue subpoena
SECTION 944. Section 40-63-30 of the 1976 Code is amended to read:
"Section 40-63-30. For the purpose of any investigation or proceeding under the provisions of this chapter, the board or any person designated by it may administer oaths and affirmations, subpoena witnesses, take evidence, and require the production of any documents or records which the board considers relevant to the inquiry. In the case of contumacy by, or refusal to obey a subpoena issue to, any person, an administrative law judge as provided under Article 5 of Chapter 23 of Title 1, upon application of the board, may issue an order requiring the person to appear before the board or the person designated by it and produce documentary evidence and to give other evidence concerning the matter under inquiry. Whenever the board has reason to believe that any person is violating or intends to violate any provision of this chapter it may order, in addition to all other remedies, the person immediately to desist and refrain from such conduct. The board may apply to an administrative law judge as provided under Article 5 of Chapter 23 of Title 1 for an injunction restraining the person from such conduct. An administrative law judge may issue a temporary injunction ex parte and upon notice and full hearing may issue any other order in the matter it considers proper. No bond is required of the board by an administrative law judge as a condition to the issuance of any injunction or order contemplated by the provisions of this section."
Review by judge
SECTION 945. Section 40-63-120 of the 1976 Code is amended to read:
"Section 40-63-120. If the board is satisfied that the social worker is guilty of any offense charged in the formal accusation provided for in this chapter, it shall revoke, suspend, reprimand, or otherwise take any other reasonable action short of revocation or suspension, such as requiring the licensee to undertake additional professional training subject to the direction and supervision of the board. The board also may impose such restraint upon the licensee as circumstances warrant until the licensee demonstrates to the board adequate professional competence. In all cases where disciplinary action is taken by the board, written notice of the action must then be mailed by the secretary of the board to the accused at his last known address as provided to the board. Any final order of the board finding that a social worker is guilty of any offense charged in a formal accusation must become public knowledge except for a final order dismissing the accusation or determining that a private reprimand is in order. All final orders which are made public must be mailed to local and state professional associations, and all firms or facilities with which the respondent is associated, states where the social worker has a license known to the board, and to any other source that the board wishes to furnish this information. A decision by the board to revoke, suspend, or otherwise restrict the license must be by majority vote and is subject to review by an administrative law judge as provided under Article 5 of Chapter 23 of Title 1."
Chapter amended; name changes
SECTION 946. Chapter 65 of Title 40 of the 1976 Code is amended to read:
"CHAPTER 25
Soil Classifiers
Section 40-65-10. Unless the context or subject matter otherwise requires:
(a) `Soil classifier' shall mean a professional soil classifier as defined in subsection (b) of this section.
(b) `Professional soil classifier' shall mean a person who by reason of his special knowledge of the physical, chemical and biological sciences applicable to soils as natural bodies and of the methods and principles of soil classification as acquired by soils education and soil classification experience in the formation, morphology, description and mapping of soils is qualified to practice soil classifying and who has been duly registered by the State Board of Registration for professional soil classifiers.
(c) `Soil-classifier-in-training' shall mean a person who complies with the requirements for education and character and who has passed an examination in the fundamental soil and related subjects as provided for in Sections 40-65-100, 40-65-110, 40-65-120 and 40-65-130.
(d) `Soil' is all of the groups of natural bodies occupying the unconsolidated portion of the earth's surface capable of supporting plant life and having properties due to the combined effect of climate and living organisms, as modified by topography and time, upon parent materials.
(e) `Kind of soil' is a group of natural bodies that has a discrete combination landscape, morphological, chemical and physical properties.
(f) `Soil classification' is plotting the boundaries, describing and evaluating the kinds of soil as to their behavior and response to management under the various uses.
(g) `Practice of soil classifying and practice of professional soil classifying' shall mean any service or work the adequate performance of which requires education in the physical, chemical, biological and soil sciences, training and experience in the application of the special knowledge of these sciences to soil classification, the soil classification by accepted principles and methods, investigation, evaluation and consultation on the effect of measured, observed and inferred soil properties upon the various uses, the preparation of soil descriptions, maps and reports and interpretive drawings, maps and reports of soil properties and the effect of soil properties upon the various uses, and the effect of the various uses upon kinds of soil, any of which embraces such service or work either public or private incidental to the practice of soil classifying.
A person shall be construed to practice or offer to practice soil classifying within the meaning and intent of this chapter who by verbal claim, sign, advertisement, letterhead, card or use of some other title represent himself to be a soil classifier, but shall not mean or include the practice of soil classifying by persons exempt under the provisions of Section 40-65-240 nor the work ordinarily performed by persons who sample and test soil for fertility status or construction materials and engineering surveys and soundings to determine soil properties influencing the design and construction of engineering and architectural projects. Notwithstanding the foregoing provisions, a person shall not be construed to practice soil classifying unless he offers soil classifying services to or performs such soil classifying for the public.
(h) `Department' shall mean the Department of Natural Resources.
(i) `Responsible charge' shall mean direct control and personal supervision of soil classification.
Section 40-65-20. The department shall serve as the agency of registration for professional soil classifiers and added to its duties shall be the administration of the provisions of this chapter. The department shall appoint an advisory council of five qualified professional soil classifiers who shall have the qualifications required in Section 40-65-30 to recommend certification of those eligible to become registered soil classifiers. One of these five persons shall be the chief soil scientist of the department. The other four members of the advisory council shall be appointed for five years and until their successors have been appointed and qualify, provided that the initial terms shall be made so that the term of one member shall expire on June thirtieth of each year.
Section 40-65-30. Each member of the advisory council shall be a professional soil classifier who has been actively engaged in the practice of professional soil classifying for a period of at least ten years and who shall have been in responsible charge of soil classification for at least six years.
Section 40-65-40. Each member of the advisory council may receive twenty-five dollars for each day actually engaged in the services of the department and shall be reimbursed for all actual travelling, incidental and clerical expenses necessarily incurred in carrying out the provisions of this chapter. These expenses shall be paid from general appropriations of the department.
Section 40-65-50. Vacancies in the membership of the advisory council shall be filled for the unexpired term by appointment by the department as provided in Section 40-65-20.
Section 40-65-60. The advisory council shall hold at least two regular meetings each year. Special meetings may be held as the bylaws of the council provide. The council shall elect annually a chairman and a vice-chairman. The chief soil scientist, SCLRCC, shall serve as secretary-treasurer of the council. A quorum of the council shall consist of three members.
Section 40-65-70. The department shall have the following powers:
(a) To adopt and amend all bylaws, rules of procedure and regulations to administer and carry out the provisions of this chapter and for the conduct of its affairs and functions consistent with the Constitution and laws of this State or this chapter which may be reasonably necessary for the performance of its duties and the regulation of its proceedings, meetings, records, examinations and the conduct thereof, and to adopt and promulgate a code of ethics which shall be binding upon all persons registered under or subject to this chapter.
(b) To affix its official seal to each numbered certificate issued.
(c) To hold hearings, administer oaths, take and record testimony and under the hand of its chairman and the seal of the department subpoena witnesses and compel their attendance and to require the submission of books, papers, documents or other pertinent data in any disciplinary matters or in any case wherever a violation of this chapter or of the rules or regulations promulgated by the department is alleged, and to make findings, orders and determinations which shall have the force and effect of law which shall be subject to review by the courts of this State in the manner provided by law from decisions of other boards and commissions. Upon failure or refusal of any person to comply with any such order of the department, or to honor its subpoena, the department may apply to an administrative law judge of any jurisdiction to enforce compliance with same.
(d) To apply in the name of the state for relief by injunction without bond, to enforce the provisions of this chapter or to restrain any violation thereof. In such proceedings it shall not be necessary to allege or prove either that an adequate remedy at law does not exist or that substantial or irreparable damage would result from the continued violation thereof. The members of the department shall not be personally liable under this proceeding.
Section 40-65-80. All funds derived under the provisions of this chapter shall be remitted to the State Treasurer as collected. Such funds may be expended as directed by the department upon warrant requisitions directed to the Comptroller General who shall, after being satisfied of the propriety of payment, issue his warrant on the State Treasurer.
Section 40-65-90. The department shall keep a record of its proceedings and of all applications for registration which record shall show the name, age and last known address of each applicant, the place of business of such applicant, his education, experience and other qualifications, type of examination required, whether or not a certificate of registration was granted, whether or not the applicant was rejected, the date of the action of the department, and such other information as may be deemed necessary by the department which record of the department shall be prima facie evidence of the proceeding of the department and a transcript thereof duly certified by the secretary under seal shall be admissible as evidence with the same force and effect as if the original were produced.
Section 40-65-100. To be eligible for registration as a professional soil classifier or certification as a soil-classifier-in-training, an applicant must be of good character and reputation and shall submit a written application to the department containing such information as the department may require, together with five references, three of which shall be professional soil classifiers having personal knowledge of his soil classifying experience; or in the case of an application for certification as a soil-classifier-in-training, by three character references.
Section 40-65-110. An applicant otherwise qualified shall be admitted to registration as a professional soil classifier without examination within one year after July 1, 1974 if he is:
(a) A person of good character who has been a resident of this State for at least one year immediately preceding the date of his application and was a practicing soil classifier on July 1, 1974, and meets the requirements of this chapter and has performed work of a character satisfactory to the department; or,
(b) A person holding a certificate of registration in the practice of soil classifying on the basis of comparable qualifications issued to him by a proper authority of another state, possession or territory of the United States and who in the opinion of the department meets the requirements of this chapter.
Section 40-65-120. An applicant otherwise qualified must be admitted to registration as a professional soil classifier if he has fifteen or more semester hours of approved soil courses as recognized by the department, has successfully passed an examination in the principles and practice of soil classifying as prescribed by the department, has completed two or more years of training under the supervision of a registered soil classifier or someone who meets the minimum academic and experience requirements of a registered soil classifier, and has one of the following additional qualifications:
(a) is a person who has earned a bachelor's degree or equivalent in a curriculum approved by the department and with a specific record of two years or more of experience of a grade and character which indicates to the department that the applicant is competent to practice soil classifying; or
(b) is a person who has earned a bachelor's degree or equivalent in one of the natural sciences and has six years or more of experience in soil classifying work of a character and grade which indicates to the department that the applicant is competent to practice soil classifying; or
(c) is a person who holds a valid soil-classifier-in-training certificate with a specific record of two years or more experience as a soil-classifier-in-training of a grade and character which indicates to the department that the applicant is competent to practice soil classifying; or
(d) is a person who is an extension specialist, researcher, or teacher of soils in a college or university and has two or more years of soil classifying experience of a character and grade which indicates to the department that the applicant is competent to practice soil classifying.
Section 40-65-130. Unless otherwise qualified, a person must be admitted to certification as a soil-classifier-in-training, which certification is valid for two years, if he is a person who is:
(a) a person who has earned a bachelor's degree or equivalent in a curriculum approved by the department and has passed an examination in the fundamentals of soil classification; or
(b) an applicant who has completed a curriculum not approved by the department and who has a specific record of four years of soil classification experience of which two years must be under the supervision of a registered soil classifier or someone who meets the minimum academic and experience requirements of a registered soil classifier and who passes an examination in the fundamentals of soil classification.
Section 40-65-140. Application for registration as a professional soil classifier and for certification as a soil-classifier-in-training shall be on a form prescribed and furnished by the department, shall contain statements made under oath showing the applicant's education, a detailed summary of his experience, and references as required by this chapter and shall be accompanied by an application fee established by the department of not less than five nor more than twenty-five dollars.
Section 40-65-150. Registration shall be established by the department subject to the following limitations:
(a) The registration fee for professional soil classifiers shall be in an amount not less than twenty nor more than one hundred dollars.
(b) The registration fee for soil-classifier-in-training certification or enrollment shall be established by the department in an amount not less than ten nor more than fifty dollars.
(c) Should the department deny the issuance of a certificate to an applicant, the fee paid shall be retained as an application fee.
Section 40-65-160. Examinations shall be held at such times and places as the department shall determine. Examinations required on fundamental soil subjects may be taken at any time prescribed by the department. The final examinations may not be taken until the applicant has completed a period of soil classifying experience as provided in this chapter. The passing grade on any examination shall not be less than seventy percent. A candidate failing one examination may apply for reexamination, which may be granted upon payment of a fee established by the department of not less than ten nor more than twenty-five dollars. Any candidate for registration having an average grade of less than fifty percent may not apply for reexamination for a period of one year from the date of such examination.
Section 40-65-170. The department shall issue a certificate of registration upon payment of the registration fee as provided for in this chapter to an applicant who in the opinion of the department has met the requirements of this chapter. Enrollment cards must be issued to those who qualify as soil-classifiers-in-training. Certificates of registration must carry the designation 'professional soil classifier', show the full name of the registrant without any titles, be numbered, and be signed by the executive director of the department. The issuance of a certificate of registration by the department is prima facie evidence that the person named is entitled to all rights and privileges of a professional soil classifier during the term for which the certificate is valid if it has not been revoked or suspended.
Section 40-65-180. Certificates of registration shall expire on the last day of the month of December following their issuance and shall become invalid after that date unless renewed. It shall be the duty of the secretary of the department to notify every person registered under this chapter of the date of the expiration of the certificate of registration and the amount of the fee required for its renewal. Such notice shall be mailed to the registrant at his last-known address at least one month in advance of the expiration of such certificate. Renewal may be effected at any time prior to or during the month of December by the payment of a fee established by the department not to exceed the fees established for registration. Renewal of an expired certificate may be effected under rules promulgated by the department regarding requirements for reexamination and penalty fees.
Section 40-65-190. A new certificate of registration to replace any certificate lost, destroyed or mutilated may be issued subject to the rules of the department. A reasonable charge shall be made for such issuance.
Section 40-65-200. The department shall cause to have prepared and shall adopt a code of ethics a copy of which shall be delivered to every registrant and applicant for registration under this chapter. Such delivery shall constitute due notice to all registrants. The department may revise and amend this code of ethics from time to time and shall forthwith notify each registrant in writing of such revisions and amendments. Such code of ethics when adopted shall apply to all certificate holders.
Section 40-65-210. The department shall have the power to suspend, refuse to renew or revoke the certificate of registration of, or reprimand any registrant who is guilty of: the practice of fraud or deceit in obtaining a certificate of registration, any gross negligence, incompetence or misconduct in the practice of soil classifying, any felony or crime involving moral turpitude or violation of the code of ethics adopted and promulgated by the department.
Section 40-65-220. Any person may prefer charges of fraud, deceit, gross negligence, incompetence, misconduct or violation of the code of ethics against any individual registrant. Such charges shall be in writing and shall be sworn to by the person or persons making them and shall be filed with the secretary of the department. All charges unless dismissed by the department as unfounded or trivial shall be heard by the department within three months after the date on which they shall have been preferred. The time and place for such hearing shall be fixed by the department and a copy of the charges, together with a notice of the time and place of hearing, shall be served upon the accused either personally or sent by registered or certified mail to the last-known address of such individual registrant at least thirty days before the date fixed for hearing. At any hearing the accused registrant shall have the right to appear in person or by counsel, or both, to cross-examine witnesses appearing against the accused, and to produce evidence and witnesses in defense of the accused. If the accused person fails or refuses to appear, the department may proceed to hear and determine the validity of the charges. If after such hearing a majority of the department votes in favor of sustaining the charges, the department shall make findings of fact, draw its conclusions and issue its order therein and serve the same upon the accused. In such order the department may reprimand, suspend, refuse to renew, or revoke the accused individual's certificate of registration. Any person who feels aggrieved by any action of the department in denying, suspending, refusing to renew, or revoking his certificate of registration may appeal therefrom an administrative law judge to within thirty days after receipt of the order of the department. The hearing by the court shall be de novo.
Section 40-65-230. No resident or nonresident shall practice or offer to practice professional soil classifying as defined by this chapter unless such person is duly registered to practice under the provisions of this chapter.
Section 40-65-240. This chapter shall not be construed to prevent or affect:
(a) The work of an employee or subordinate of a person holding a certificate of registration under this chapter or an employee of a person practicing lawfully under subsection (a) of this section, provided such work does not include final soil classifying decisions and is done under the direct supervision of and verified by a person holding a certificate of registration under this chapter or a person practicing lawfully under subsection (a) of this section.
(b) The practice of any other legally recognized profession or trade.
(c) The practice of soil classifying by a person who is regularly employed to perform soil classifying services solely for his employer or for a subsidiary or affiliated corporation of his employer, providing the soil classifying is performed on the real property of his employer.
Section 40-65-260. Any person who shall practice or offer to practice professional soil classifying in this State without being registered in accordance with the provisions of this chapter, or any person, firm, partnership, organization, association, corporation or other entity using or employing the words `soil classifier' or `professional soil classifier' or any modification or derivative thereof in its name or form of business or activity except as authorized in this chapter, or any person presenting or attempting to use the certificate of registration of another, or any person who shall give any false or forged evidence of any kind to the department or to any member thereof in obtaining or attempting to obtain a certificate of registration or any person who shall falsely impersonate any other registrant of like or different name, or any person who shall attempt to use an expired or revoked or nonexistent certificate of registration, or who shall practice or offer to practice when not qualified, or any person who falsely claims that he is registered under this chapter, or any person, partnership, corporation or other entity who shall violate any of the provisions of this chapter shall be deemed guilty of a misdemeanor and, upon conviction, shall be fined not more than one thousand dollars or be imprisoned for not more than three months. Each violation shall constitute a separate offense. It shall be the duty of all duly constituted officers of the state and all political subdivisions thereof to enforce the provisions of this chapter and to prosecute any persons violating same."
Director to employ personnel
SECTION 947. Section 40-67-100 of the 1976 Code is amended to read:
"Section 40-67-100. The Director of the Department of Labor, Licensing, and Regulation, pursuant to section 40-73-15, may employ within the limits of available funds a secretary and such attorneys, inspectors, clerks, and other employees as shall be deemed necessary, and shall outline their duties and fix their compensation."
Appeals
SECTION 948. Section 40-67-170 of the 1976 Code is amended to read:
"Section 40-67-170. Notice in writing of a contemplated revocation or suspension of a license, of the cause therefor in sufficient particularity, and of the date of hearing thereon shall be sent by registered or certified mail to the licensee at his last known address at least thirty days before the date of such hearing. The licensee against whom a charge is filed shall have a right to appear before the board in person or by counsel, may produce witnesses and evidence in his behalf, and may examine witnesses. No license shall be revoked or suspended without such hearing, but the nonappearance of the licensee, after notice, shall not prevent such hearing. The licensee shall be notified in writing of the board's decision. Any person who feels aggrieved by any action of the board in denying, suspending, refusing to renew, or revoking his certificate of registration or license may appeal therefrom to an administrative law judge as provided under Article 5 of Chapter 23 of Title 1 within thirty days after receipt of the order of the board.
After issuing an order of revocation or suspension the board may also file a petition in equity with an administrative law judge as provided under Article 5 of Chapter 23 of Title 1 to ensure appropriate injunctive relief to expedite and secure the enforcement of its order pending the final determination.
After one year from the date of revocation, an application for reinstatement may be made to the voard, which may, upon affirmative vote of at least the majority of its members, grant such reinstatement."
Powers of board
SECTION 949. Section 40-69-70 of the 1976 Code is amended to read:
"Section 40-69-70. The powers and duties of the board must include, but not be limited to, the following:
(1) to adopt and promulgate regulations, pursuant to the State Administrative Procedures Act, governing the practice of veterinary medicine as are necessary to enable it to carry out and make effective the purpose and intent of this article. These regulations may include minimum standards for all facilities where veterinary medicine is practiced and minimum standards for continuing education for relicensure;
(2) to adopt rules of professional conduct prior to July 1, 1993, appropriate to establish and maintain a high standard of integrity, skills, and practice in the profession of veterinary medicine. In prescribing such rules of professional conduct, the board may be guided by the principles of veterinary medical ethics adopted by the American Veterinary Medical Association and the South Carolina Association of Veterinarians;
(3) to print its regulations and distribute them to all persons licensed to practice veterinary medicine in this State;
(4) to bring proceedings in courts for the enforcement of this article or any regulations made pursuant thereto;
(5) to establish qualifications for persons wishing to be licensed to practice veterinary medicine;
(6) to pass upon the qualifications of applicants for a license to practice veterinary medicine in this State;
(7) to approve schools and colleges of veterinary medicine which maintain sufficient standards of training and reputability;
(8) to prescribe the subjects, character, manner, time, and place of holding examinations and the filing of applications for examinations and to conduct the examinations;
(9) to issue temporary permits or licenses to duly qualified applicants;
(10) to provide for, regulate, and require all persons licensed in accordance with the provisions of this article to renew their license annually;
(11) to conduct investigations and hearings upon complaints calling for discipline of a licensee or applicant for license;
(12) to take testimony on any matter under its jurisdiction and to administer oaths;
(13) to issue summons and subpoenas, including subpoenas duces tecum, for any witness, in connection with any matter within the jurisdiction of the board, which must be signed by either the chairman or the secretary-treasurer of the board;
(14) (RESERVED);
(15) to inspect licenses;
(16) to conduct investigations of all alleged violations;
(17) to prosecute according to law or instigate the prosecution of all violators of this chapter;
(18) to adopt regulations for the sale and dispensing of prescriptions and controlled veterinary drugs, pharmaceuticals, and biologics in accordance with federal and state laws."
Appeal to judge
SECTION 950. Section 40-69-150 of the 1976 Code is amended by adding at the end:
"Any person who feels aggrieved by any action of the board in denying, suspending, refusing to renew, or revoking his certificate of registration or license may appeal therefrom to an administrative law judge as provided under Article 5 of Chapter 23 of Title 1 within thirty days after receipt of the order of the board."
Board may apply to judge
SECTION 951. Section 40-69-210 of the 1976 Code is amended to read:
"Section 40-69-210. Whenever the board has reason to believe that any person is violating or intends to violate any provision of this article, it may, in addition to all other remedies, order the person to immediately desist and refrain from that conduct. The board may apply to an administrative law judge as provided under Article 5 of Chapter 23 of Title 1 for an injunction restraining the person from that conduct. An administrative law judge may issue a temporary injunction ex parte and upon notice and full hearing may issue any other order in the matter as it deems proper. No bond must be required of the board by an administrative law judge as a condition to the issuance of any injunction or order contemplated by the provisions of this section.
No member of the board or its committees, special examiners, agents, and employees may be held liable for acts performed in the course of official duties, except where actual malice is shown. For the purpose of any investigation or proceeding under the provisions of this article, the 2board or any person designated by it may administer oaths and affirmations, subpoena witnesses, take evidence, and require the production of any documents or records which the board deems relevant to the inquiry."
Powers and duties of board
SECTION 952. Section 40-69-420 of the 1976 Code is amended to read:
"Section 40-69-420. (A) The powers and duties of the board shall include but not be limited to:
(1) promulgate regulations governing the Animal Health Technician as are necessary to enable it to carry out and make effective the purpose and intent of this article;
(2) adopt rules of professional conduct appropriate to establish and maintain a high standard of integrity and skills relating to the Animal Health Technician;
(3) print its regulations and distribute them to all certified Animal Health Technicians;
(4) establish qualifications for persons wishing to be certified as an Animal Health Technician;
(5) pass upon the qualifications of applicants for a certificate to work as an Animal Health Technician in this State;
(6) prescribe the subject, character, manner, time and place of holding examinations and the filing of applications for examinations and to conduct the examinations;
(7) issue temporary certificates to duly qualified applicants.
(8) provide for, regulate and require all persons certified in accordance with the provisions of this article; to renew their certificate annually; to issue annual renewal certificates to such persons and to suspend or revoke the certificates to such persons who fail, refuse or neglect to renew such certificate;
(9) inspect certificate.
(B) The powers and duties of the board as provided in items (4), (11), (12), (13), (16), and (17) of Section 40-69-70 shall also apply to Animal Health Technicians."
Professions and occupations to be administered
SECTION 953. The 1976 Code is amended by adding:
"Section 40-73-15. (a) The following professions and occupations shall hereafter be administered by the Department of Labor, Licensing, and Regulation:
Accountants
Architects
Athletic Commission
Auctioneers
Barbers and Barbering
Barrier Free Design Board
Building Code Council
Burglar Alarm Business
Chiropractors and Chiropractic
Contractors
Cosmetologists
Dentists, Dental Hygienists and Dental Technicians
Embalmers and Funeral Directors/Funeral Service Board
Engineers and Land Surveyors
Environmental Systems Operators
Fire Sprinkler Contractors
Foresters Registration Board
Geologists
Harbor Pilots/ Pilotage Commission
Liquefied Petroleum Gas Board
Manufactured Housing Board
Modular Appeals Board
Nurses
Nursing Home Administrators
Occupational Therapists
Optometrists
Opticians
Pharmacists
Physical Therapists
Physicians, Surgeons and Osteopaths
Podiatrists and Podiatry
Professional Counselors, Marital and Family Therapists
Psychologists
Pyrotechnic Safety Board
Real Estate Brokers and Appraisers
Residential Home Builders
Sanitarians
Social Workers
Speech Pathologists and Audiologists
Veterinarians
(b) The Department of Labor, Licensing, and Regulation shall be headed by a director who must be appointed by the governor with the advice and consent of the Senate, subject to removal from office by the governor pursuant to Section 1-3-240(B).
(c) The Director of the Department of Labor, Licensing, and Regulation shall employ such personnel as is necessary, for each of the professional and occupational licensing boards provided for in subsection (a). The director must select any personnel charged with evaluating or administering professional qualification or licensing standards from a list of three candidates submitted by the appropriate licensing board. Provided, any candidate whose name is submitted to the Director of the Department of Labor, Licensing, and Regulation by the appropriate board must be chosen from a list of all candidates found to be qualified by the Human Resource Management Division of the Budget and Control Board utilizing qualification criteria developed by the appropriate board. The authority to remove an executive director or secretary of a professional and occupational licensing board appointed under this subsection is vested solely with the Director of the Department of Labor, Licensing, and Regulation.
(d) The Director of the Department of Labor, Licensing, and Regulation shall appoint an investigator or other person charged with reviewing or assisting in the determination of professional qualifications, if necessary, for each of the professional and occupational licensing boards provided for in subsection (a). The director must choose such person from a list of three candidates submitted by the appropriate licensing board. The authority to remove such person appointed under this subsection is vested solely with the Director of the Department of Labor, Licensing, and Regulation."
Board may apply to judge
SECTION 954. Section 40-75-40 of the 1976 Code is amended to read:
"Section 40-75-40. No member of the board and no special examiner, agent, or employee of the board may be held liable for acts performed in the course of official duties except where actual malice is shown. For the purpose of any investigation, inquiry, or proceeding under this chapter, the board or any person designated by it may administer oaths and affirmations, subpoena witnesses, take evidence, and require the production of any document or record which the board considers relevant to the investigation, inquiry, or proceeding. In the case of contumacy by, or refusal to obey a subpoena issued to any person, an administrative law judge as provided under Article 5 of Chapter 23 of Title 1, upon application of the board, may issue an order requiring the person to appear before the board or the person designated by it and to produce documentary evidence and to give other evidence concerning the matter under investigation or inquiry.
Whenever the board has reason to believe that any person is violating or intends to violate any provision of the chapter it may order, in addition to all other remedies allowed by law, the person to desist immediately and refrain from the conduct. The board may apply to an administrative law judge as provided under Article 5 of Chapter 23 of Title 1 for an injunction restraining the person from the conduct. An administrative law judge may issue ex parte a temporary injunction not to exceed ten days in duration and, upon notice and full hearing, may issue any other order in the matter it considers proper. No bond may be required of the board by an administrative law judge as a condition to the issuance of any injunction or order contemplated by the provisions of this section."
Review by judge
SECTION 955. Section 40-75-180 of the 1976 Code is amended to read:
"Section 40-75-180. If the board is satisfied that the licensee is guilty of any offense charged in the formal accusation provided for in this chapter, it shall revoke or suspend the license or reprimand or restrict the licensee or otherwise discipline him by taking reasonable action short of revocation or suspension such as requiring the licensee to undertake additional professional training subject to the direction and supervision of the board. The board also may impose other restraints upon the licensee as circumstances warrant until the licensee demonstrates to the board adequate professional competence. In all cases where disciplinary action is taken by the board, written notice of the action must be mailed by the board to the licensee at his last known address as provided to the board.
Any final order of the board finding that a licensee is guilty of any offense charged in a formal accusation becomes public knowledge except for a final order dismissing the accusation or determining that a private reprimand is in order. All final orders which are made public must be mailed to local and state professional associations, all firms or facilities with which the licensee is associated, states where the licensee has a license known to the board, and to any other source to which the board wishes to furnish this information.
Any decision by the board to revoke or suspend a license or to reprimand or restrict a licensee or otherwise to discipline him must be by majority vote and is subject to review by an administrative law judge as provided under Article 5 of Chapter 23 of Title 1 upon a petition filed by the licensee with the court and a copy served upon the secretary of the board, or, if there is no secretary, upon the president, within thirty days from the date of delivery of the board's decision to the licensee. The review must be in accordance with the provisions of Act 176 of 1977 (Administrative Procedures Act)."
Director may employ personnel
SECTION 956. Section 40-77-100 of the 1976 Code is amended to read:
"Section 40-77-100. The Director of the Department of Labor, Licensing, and Regulation, pursuant to Section 40-73-15, may employ clerical and other assistants necessary for the proper performance of the board's work."
Board may petition judge
SECTION 957. Section 40-77-110 of the 1976 Code is amended to read:
"Section 40-77-110. In carrying out the provisions of this chapter, the board may subpoena witnesses and compel their attendance and also may require the production of books, papers, reports, documents, and similar material in a case involving practicing or offering to practice without registration. Any member of the board may administer oaths or affirmations to witnesses appearing before the board. If any personrefuses to obey any subpoena or refuses to testify or produce any books, papers, reports, documents, or similar material, the board may petition an Administrative Law Judge as provided under Article 5 of Chapter 23 of Title 1 to issue its subpoena requiring his attendance to testify or to produce books, papers, reports, documents, or similar material considered necessary and pertinent by the board. Any person failing or refusing to obey a subpoena or order of an administrative law judge as provided under Article 5 of Chapter 23 of Title 1 may be subject to legal proceedings."
Persons may appeal to judge
SECTION 958. Section 40-77-320 of the 1976 Code is amended to read:
"Section 40-77-320. Any person who feels aggrieved by any action of the board denying or revoking his registration may appeal to an administrative law judge as provided under Article 5 of Chapter 23 of Title 1 under the provisions of Act 176 of 1977 (the Administrative Procedures Act)."
Director to furnish printed form
SECTION 959. Section 41-1-10 of the 1976 Code is amended to read:
"Section 41-1-10. Every employer shall keep posted in a conspicuous place in every room where five or more persons are employed a printed notice stating the provisions of the law relative to the employment of adult persons and children and the regulation of hours and working conditions. The Director of the Departmentof Labor, Licensing, and Regulation or his designee shall furnish the printed form of such notice upon request."
Name change
SECTION 960. Section 41-3-10 of the 1976 Code is amended to read:
"Section 41-3-10. A Division of Labor is hereby created, established, and administered under the supervision and direction of the Department of Labor, Licensing, and Regulation. A director of the Department of Labor, Licensing, and Regulation must be appointed by the Governor pursuant to the provisions of Section 40-73-15. The director means the chief administrative officer of the Department of Labor, Licensing, and Regulation. The Division of Labor is authorized to promulgate regulations for the division, and it is the duty of the division to administer and enforce the regulations and direct all inspections and investigations except as otherwise provided."
Director to employ personnel
SECTION 961. Section 41-3-30 of the 1976 Code is amended to read:
"Section 41-3-30. The Director of Labor, Licensing, and Regulation, or his designee, pursuant to Section 40-73-15, may employ such personnel and prescribe their duties, powers, and functions as he considers necessary and as may be authorized by the statute and for which funds have been authorized in the annual general appropriations act. The director or his designee may assign or transfer employees from one subdivision to another or may combine the clerical and inspection forces of two or more subdivisions, as he may consider necessary and advisable."
Name change
SECTION 962. Section 41-3-40 of the 1976 Code is amended to read:
"Section 41-3-40. The Director of Labor, Licensing, & Regulation, or his designee shall make regulations with reference to the work of the Division of Labor and of the several subdivisions thereof as shall be necessarily properly to carry out the duties imposed upon the division."
Name change
SECTION 963. Section 41-3-50 of the 1976 Code is amended to read:
"Section 41-3-50. The director of the department or his designee shall visit and inspect at reasonable hours, as often as practicable, all places, sites or areas where employment comes under the jurisdiction of the division to enforce the provisions of Chapters 1 through 25 of this Title."
Name change
SECTION 964. Section 41-3-55 of the 1976 Code is amended to read:
"Section 41-3-55. At any construction site involving multiple employers or contractors, the department inspector when citing any such employer or contractor for a violation of any regulation or standard provided by law shall first determine which employer or contractor is in violation and such employer or contractor only shall be cited and held responsible for such violation."
Name change
SECTION 965. Section 41-3-60 of the 1976 Code is amended to read:
"Section 41-3-60. The Director of the Department of Labor, Licensing, and Regulation or his designee shall enforce all laws of Chapters 1 through 25 of this Title in places, sites or areas, which come under his jurisdiction, and appoint such assistants and inspectors as necessary to carry out his duties. The duties of such assistants and inspectors shall be prescribed by the director which come under his jurisdiction."
Name change
SECTION 966. Section 41-3-70 of the 1976 Code is amended to read:
"Section 41-3-70. A representative of the employer and a representative authorized by his employees shall be given an opportunity to accompany the Director of the Department of Labor, Licensing, and Regulation or his designee, his assistant or inspector during the physical inspection of any workplace for the purpose of aiding such inspection. No employee shall suffer any loss of wages or other benefits which would normally accrue to him because of his participation in the walk-around inspection under this section. Where there is no authorized representative, the director or his designee, his assistant or inspector shall consult with a reasonable number of employees concerning matters of health and safety in the workplace."
Name change
SECTION 967. Section 41-3-80 of the 1976 Code is amended to read:
"Section 41-3-80. The Division of Labor may assist and cooperate with the wage and hour division and the children's bureau, United States Department of Labor, in the enforcement within this State of the Fair Labor Standards Act of 1938, adopted by the Congress of the United States, approved June 25, 1938, or as it may be hereafter amended and, subject to the regulations of the administration of the wage and hour division or the chief of the children's bureau, as the case may be, and the laws of this State applicable to the receipt and expenditure of moneys, may be reimbursed by such division or such bureau for the reasonable cost of such assistance and cooperation."
Name change
SECTION 968. Section 41-3-100 of the 1976 Code is amended to read:
"Section 41-3-100. All blanks and forms required by the Director of the Department of Labor, Licensing, and Regulation or his designee under provisions of Chapters 1 through 25 of this Title shall be furnished by the director or his designee."
Director must subpoena witnesses
SECTION 969. Section 41-3-110 of the 1976 Code is amended to read:
"Section 41-3-110. The Director of the Department of Labor, Licensing, and Regulation or his designee may subpoena witnesses, documents, take and preserve testimony, examine witnesses, administer oaths and, under proper restrictions, enter any public institution of the State or any factory, store, workshop, laundry, public eating house or mine and interrogate any person employed therein or connected therewith or the proper officers of a corporation or he may file a written or printed list of interrogatories and require full and complete answers to them to be returned, under oath, within fifteen days of the receipt of such list."
Name change
SECTION 970. Section 41-3-120 of the 1976 Code is amended to read:
"Section 41-3-120. The Director of the Department of Labor, Licensing, and Regulation or his designee shall enforce the provisions of Chapters 1 through 25 of this title and prosecute all violations of law relating to those chapters before any court of competent jurisdiction."
Name change
SECTION 971. Section 41-3-130 of the 1976 Code is amended to read:
"Section 41-3-130. The solicitor of the circuit or the prosecuting attorney of the city court, upon the request of the Director of the Department of Labor Licensing, and Regulation or his designee, or any of his assistants or deputies, shall prosecute any violation of law which it is the duty of the director or his designee to enforce."
Name change
SECTION 972. Section 41-3-140 of the 1976 Code is amended to read:
"Section 41-3-140. Any person who shall willfully impede or prevent the Director of the Department of Labor, Licensing, and Regulation or his designee, his agents or assistants, in the free and full performance of his duties shall, upon conviction, be fined not less than one hundred dollars or more than one thousand dollars or be imprisoned for not less than thirty days or more than six months, or both."
Name change
SECTION 973. Section 41-3-510 of the 1976 Code is amended to read:
"Section 41-3-510. There is established within the Division of Labor, the Migrant Labor subdivision."
Name change
SECTION 974. Section 41-3-520 of the 1976 Code is amended to read:
"Section 41-3-520. The Division of Labor may with the approval of the majority of the Migrant Farm Workers Commission promulgate, revoke, or modify rules and regulations implementing the recommendations of the Migrant Farm Workers Commission in safeguarding the health, safety, education and welfare of migrant or seasonal farm workers."
Director authorized to enter the contracts
SECTION 975. Section 41-3-540 of the 1976 Code is amended to read:
"Section 41-3-540. The Director of the Department of Labor, Licensing, and Regulation or his designee is authorized to enter into contracts with other state agencies and other political subdivisions of the State to provide migrant labor services, and the Division of Labor shall enforce the regulations. Additionally, the director or his designee is authorized to enter into contracts with existing private agencies organized for the purpose of providing services to the migrant or seasonal farm workers and any newly organized private agency organized to provide services to the migrant or seasonal farm workers which are approved by the Migrant Farm Workers Commission. The director or his designee shall report annually to the General Assembly the activity of the Migrant Farm Workers Commission and the Migrant Labor Subdivision for the preceding fiscal year."
Name change
SECTION 976. Section 41-3-530 of the 1976 Code is amended to read:
"Section 41-3-530. Prior to the promulgation, modification or revocation of any regulation pursuant to Section 41-3-520 and the Administrative Procedures Act, the Division of Labor shall conduct a public hearing at which all interested persons shall be provided an opportunity to appear and present their comments either orally, written or both. Notice of such hearing shall be published in at least three newspapers, one of which has circulation in the upper section of the State, one which has circulation in the middle section of the State and one with circulation in the lower section of the State, once a week for three weeks. The notice shall contain the date, time, and place of the hearing, a brief description of the proposed regulation or the amendment or revocation of an existing rule and regulation."
Terms deemed to have certain meaning
SECTION 977. The 1976 Code is amended by adding:
"Section 41-3-610. Wherever in any other chapter of Title 41 the term Commissioner of Labor appears or is used, it shall be deemed to mean the Director of the Department of Labor, Licensing, and Regulation or his designee. Wherever in any other chapter of Title 41 the term Department of Labor appears or is used, it shall be deemed to mean the Division of Labor, that is, a division of the Department of Labor, Licensing, and Regulation. Wherever in any other chapter of Title 41 the term division appears or is used with reference to a division of the former Department of Labor, it shall be deemed to mean a subdivision of the Division of Labor. Any contested case or matter heard or decided by the former Commissioner of Labor, his designee, or any other employee of the former Department of Labor may be appealed to the OSHA Review Board as provided under this chapter."
Name change
SECTION 978. Article 6, Chapter 15, Title 41 of the 1976 Code is amended to read:
"Article 6
South Carolina Occupational Health and Safety
Review Board
Section 41-15-600. (a) There is created the South Carolina Occupational Health and Safety Review Board which shall consist of six members. Members of the board shall be selected from among those persons who by reason of training, education, experience, or knowledge of the law are qualified to carry out the functions of the board under this chapter. One member shall be elected from each congressional district of this State by the resident members of the General Assembly from that district. The senior senator from each congressional district within sixty days after the effective date of this article, within sixty days prior to the expiration of the term of the member from that district, and within sixty days after any vacancy has occurred in that district shall call a meeting of the resident members of the General Assembly from the district to elect a member of the board from the district.
(b) The terms of the members of the board are four years and until their successors are elected and qualify, except that the member first elected from the first congressional district shall serve for an initial term of one year, the members first elected from the second and third congressional districts shall serve for initial terms of two years each, the member first elected from the fourth congressional district shall serve for an initial term of three years, and the members first elected from the fifth and sixth congressional districts shall serve for initial terms of four years each. Vacancies shall be filled for the remainder of the unexpired term by election in the same manner of the original election.
(c) The members of the board shall annually elect a chairman and such other officers as they deem necessary. No officer shall serve for more than two consecutive years in that capacity.
(d) The board shall hear and determine all contested cases and shall approve all settlements of such cases which arise as a result of any citation issued by the Division of Labor pursuant to the authority in this chapter, any penalty assessed thereunder, and any date set for the abatement of any violations.
(e) The chairman is responsible on behalf of the board for the administrative operations of the board.
(f) Compensation for members of the board, to the extent funds are appropriated therefor by the General Assembly, shall be set by regulation of the South Carolina Division of Labor. Service on the board shall not be creditable service for purposes of the South Carolina Retirement System."
Name change
SECTION 979. Section 41-15-610 of the 1976 Code is amended to read:
"Section 41-15-610. (a) The board shall promulgate regulations as may be necessary to establish a procedure for administrative review of
(1) any citation issued by the Division of Labor pursuant to the authority found in this chapter,
(2) any penalty assessed thereunder, or
(3) any period for abatement set by the Division of Labor.
(b) Any employer, employee, or employee representative has the right to appear as a party in any review proceeding before any member of the board by giving written notice of protest to the board and to the Division of Labor within twenty days of the receipt of any citation, notice of penalty, or notice of period of abatement issued by the Division of Labor and affecting the employer, employee, or employee representative. The Division of Labor must be a party to any proceeding brought pursuant to this article.
(c) Hearings may be conducted by any member of the board and must follow the rules of evidence as applied in civil cases in the court of common pleas.
(d) Any party aggrieved by any decision, order, or findings of any member of the board may petition the entire board for review within thirty days of the service of the decision, order, or findings. Review may be granted by concurrence of three members of the board not including the hearing member. Full board reviews shall be conducted by five members only with the original hearing member not sitting. Where all members are not available due to incapacity or a vacancy, decisions of the hearing member shall not be reversed except upon the vote of at least three other board members. The review must be upon the record made before the hearing members and no objection that has not been urged before the hearing member may be considered by the board.
(e) Any party aggrieved by any decision, order, or findings of the board may petition the court of common pleas in the county where the employer maintains his principal place of business or where the violation is alleged to have occurred for a review of the decision, order, or findings. The proceeding shall be instituted by proper service upon all other parties of the petition for review within thirty days after service of the decision, order, or findings of the board. The commencement of proceedings under this section shall not, unless ordered by the court of common pleas, operate as a stay of the order of the board. This review is subject to all provisions of the State Administrative Procedures Act.
(f) Any decision, order, or findings of the board or any member thereof becomes a final order of the board upon the thirtieth day after service thereof, except where petition for review has been properly made.
(g) The board shall promulgate regulations as may be necessary to provide for the preparation and reasonable preservation of a record of the hearings and other proceedings."
Name change
SECTION 980. Section 41-15-620 of the 1976 Code is amended to read:
"Section 41-15-620. (a) The South Carolina Division of Labor shall provide, to the extent of funds appropriated by the General Assembly, adequate support personnel, including court reporters and clerks, to fulfill the duties of the board.
(b) The South Carolina Division of Labor shall provide adequate facilities to maintain the records of the board."
Name change
SECTION 981. Section 41-18-90 of the 1976 Code is amended to read:
"Section 41-18-90. Before the Labor Division of the Department of Labor, Licensing, and Regulation may issue a permit to the owner or lessee of an amusement device, the owner or lessee of the device shall furnish the Labor Division with proof that he has purchased insurance from an acceptable insurer in an amount not less than five hundred thousand dollars for each occurrence against liability for injury to persons arising out of the use of the amusement device and that the policy of liability is in effect. The amount of the deductible provision in the policy of insurance is dependent upon the owner's or the lessee's proof of financial responsibility and must be established by the Labor Division on a case-by-case basis. For purposes of this section, an acceptable insurer for a `permanent device' is an insurer which is either licensed by the Director of the Department of Insurance in this State or approved by the Department of Insurance as a nonadmitted surplus lines carrier for risks located in this State. For a `temporary device' an insurer shall meet either of these requirements or shall meet minimum financial requirements for admission as a licensed company in South Carolina and must be licensed in the `temporary device's' owner's or lessee's home state or must be an approved nonadmitted surplus lines carrier for risks located in that home state. Each policy, by its original terms or an endorsement, shall obligate the insurer that it will not cancel, suspend, or nonrenew the policy without thirty days' written notice of the proposed cancellation, suspension, or nonrenewal and a complete report of the reasons for the cancellation, suspension, or nonrenewal being given to the Labor Division. In the event the liability insurance is canceled, suspended, or nonrenewed, the insurer shall give immediate notice to the Labor Division. This section may not be construed to expand any of the rights granted the employees of the owners, operators, or lessees under the workers' compensation laws of this State."
Name change
SECTION 982. Section 41-41-40 of the 1976 Code is amended to read:
"Section 41-41-40. Any person who, has received any sum as benefits under Chapters 27 through 41 of this title while any conditions for the receipt of benefits imposed by such chapters were not fulfilled in his case or while he was disqualified from receiving benefits shall be liable to repay the commission for the unemployment compensation fund a sum equal to the amount so received by him. In the event full repayment of benefits, to which an individual was determined not entitled, has not been made such sum will be deducted from any future benefits payable to him under Chapters 27 through 41 of this title, and such sum shall be collectible in the manner provided in Sections 41-31-380 to 41-31-400 for the collection of past-due contributions.
The commission may, at its discretion, attempt collection of overpayments through the South Carolina Department of Revenue and Taxation in accordance with Section 12-7-2240. If the overpayment is collectible in accordance with Section 12-7-2240, the commission shall add to the amount of the overpayment a collection fee of ten dollars for each collection attempt."
Name change
SECTION 983. Section 41-44-60(B) of the 1976 Code, as last amended by Act 505 of 1990, is further amended to read:
"(B) The Governor shall cause the corporation to be formed, and he shall designate the incorporators. The initial board of directors must consist of three members, one of whom must be appointed by the Governor and two of whom must be appointed by the Director of the Department of Commerce. Members of the initial board of directors shall serve three-year terms. The initial board of directors must be representative of the State as a whole. The registered agent must be designated by the Governor. The corporation's existence begins upon filing of the articles of incorporation. The corporation's existence is perpetual, unless dissolved as provided herein. The corporation is authorized to issue shares of a number, class, and par or no-par value, as provided in its articles of incorporation. The general nature of the business of the corporation is to serve as general partner of the Palmetto Seed Capital Fund Limited Partnership, to provide financing to high growth oriented businesses, to provide seed capital to South Carolina businesses, and to undertake any acts appropriate or necessary to carry out the foregoing. The bylaws, the organizational minutes, the election of officers, the issuance of any stock of the corporation, and any other actions appropriate or necessary for the organization and operation of the corporation must be of that form and content as determined by the board of directors. Nothing contained in the chapter may prohibit the shareholders or board of directors of the corporation from altering, amending, or otherwise modifying the articles of incorporation, bylaws, or any other agreement governing the corporation as otherwise permitted pursuant to the laws of this State, except that the general nature of the business of the corporation may not be amended, altered, or otherwise modified or restricted, and except that the corporation may be dissolved, merged, or otherwise cease to exist pursuant to the appropriate vote of the board of directors and shareholders. The Governor may expend those discretionary funds as he has available and considers appropriate for the purpose of organizing the corporation and promoting the sale of the qualified investments."
Name change
SECTION 984. Section 41-44-80 of the 1976 Code is amended to read:
"Section 41-44-80. (A) If a qualified investment which is the basis for a credit under this chapter is redeemed by the Fund or the Corporation, within five years of the date it is purchased, the credit provided by this chapter for the qualified investment is disallowed, and any credit previously claimed and allowed with respect to the qualified investment so redeemed must be paid to the Department of Revenue and Taxation with the appropriate return of the taxpayer covering the period in which the redemption occurred. When payments are made to the Department of Revenue and Taxation under this section, the amount collected must be handled in the same manner as if no credit had been allowed.
(B) However, neither a distribution by the Fund nor dividends or other distributions by the Corporation are considered to be redemption of a qualified investment unless either the amount of qualified stock owned by the taxpayer or the qualified interest held by the taxpayer, after the distribution or dividend is less than the amount of qualified stock or qualified interest held by the taxpayer immediately prior to the distribution or dividend."
Reference revised
SECTION 985. Section 42-1-490 of the 1976 Code is amended to read:
"Section 42-1-490. Payments for injuries as authorized in Section 42-1-480 shall be paid from the State Accident Fund from appropriations thereto in the manner claims are paid to state employees.
Notwithstanding any other provision of this title, no inmate shall be paid a lump-sum settlement for an injury, disfigurement or death benefit. Any such lump-sum benefit which might normally be paid to an inmate or another eligible person who is not an inmate shall be paid on a monthly basis not to exceed ten percent of the total amount in any month, in addition to any weekly benefits awarded."
Reference revised
SECTION 986. Section 42-1-500 of the 1976 Code is amended to read:
"Section 42-1-500. A county by resolution of its governing body may elect to cover prisoners in the custody of the county penal system with workers' compensation benefits in accordance with the provisions of Sections 42-1-480 and 42-1-490. The appropriate officials shall make arrangements and necessary adjustments in their contributions or premiums to the State Accident Fund or other insurers as the fund or insurers determine necessary to provide compensation for county prisoners in appropriate cases. The provisions of this section permit workers' compensation coverage only to county prisoners performing work assigned by penal officials of the county or engaged in a vocational training program and, further, apply to these prisoners regardless of the length of the sentence to be served."
State accident fund
SECTION 987. Section 42-7-10 the 1976 Code is amended to read:
Section 42-7-10. (A) There is established as a separate agency of state government a separate fund to be known as the State Accident Fund, hereinafter referred to as the `fund' or `state fund' in this article. This fund consists of annual premium charges, recoveries from the Second Injury Fund, recoveries by subrogation and, subject to subsection (B) of this section, of all income or revenue derived from investing these funds. Receipts for the credit of the fund and expenditures from the fund must be handled in the manner provided by law governing all state funds.
(B) One-third of the investment income generated in Fiscal Year 1990-91 and two-thirds of the income generated in Fiscal Year 1991-92 must be credited to the state fund in those years respectively. Thereafter all such income must be credited to the state fund except that the State Treasurer may charge the state fund, and credit to the general fund, the customary investment management fee."
Reference Revised
SECTION 988. Section 42-7-20 the 1976 Code is amended to read:
"Section 42-7-20. The State Accident Fund shall be administered by a director appointed by the Governor for a term of six years with the advice and consent of the Senate. The administration shall provide for employment of office and field personnel necessary for the proper conduct of the business of the fund, to the extent of appropriations therefor, including the determination of the amount of and the collection of annual charges, the issuance of certificates of compliance with this article, the investigation of claims, the adjustment and payment of claims and awards, the inspection of risks, study and investigation with respect to safety provisions with recommendations to employers as to means of preventing injuries, medical examination of employees, and the prosecution of subrogation rights against any third party. The director may inspect and audit records of employers for the purpose of determining or verifying the amount of annual charges against such employers."
Reference Revised
SECTION 989. Section 42-7-30 the 1976 Code is amended to read:
"Section 42-7-30. Legal representation for the State Accident Fund shall be provided by a chief counsel and such staff attorneys as are necessary appointed by the director of the fund with the approval of the Attorney General. Any extra legal services that may be required must be performed by attorneys selected by the director also with the approval of the Attorney General. Fees and expenses for nonstaff attorneys must be approved by the director."
Reference Revised
SECTION 990. Section 42-7-40 the 1976 Code is amended to read:
"Section 42-7-40. This article shall apply to the State including the State Guard and the National Guard."
Reference Revised
SECTION 991. Section 42-7-70 the 1976 Code is amended to read:
"Section 42-7-70. The rates and premiums paid by employers insured in the fund must not be excessive, inadequate, or unfairly discriminatory. Employers may be grouped by classifications for the establishment of rates and minimum premiums, and classification rates may be modified to produce rates for individual employers in accordance with rating laws which establish standards for measuring any variations in hazards or expense provisions, or both, that can be demonstrated to have a probable effect upon losses or expenses. All premiums collected by the fund must be deposited by it in the State Treasurer to the credit of the State Accident Fund."
Reference Revised
SECTION 992. Section 42-7-75 the 1976 Code is amended to read:
"Section 42-7-75. All state agencies shall pay workers' compensation premiums according to Section 42-7-70, as determined by the State Accident Fund. Calculation of premiums for the Adjutant General's Office must exclude losses arising out of service as a member of the South Carolina State and National Guard. In lieu of premiums for those losses the Adjutant General shall pay, at the beginning of each premium year, the amount estimated by the fund to be required to cover actual workers' compensation benefits to guard members during the premium year. If the amount actually paid as benefits differs from the estimated pay out advanced under this paragraph, the difference must be debited or credited to the Adjutant General's account in the same manner that an actual adjusted premium is handled.
The State Treasurer and the Comptroller General shall pay from the general fund of the State to the State Accident Fund any necessary funds to cover actual benefit claims paid during any fiscal year, which exceed the amounts paid in for this purpose by the various agencies, departments, and institutions. The State Accident Fund shall certify quarterly to the Budget and Control Board the state's liability for the benefit claims actually paid to claimants who are employees of any agency or political subdivision of this State and who are entitled to such payment under state law. The amount certified must be remitted to the State Accident Fund.
If there are not sufficient funds in the State Accident Fund Trust Account to pay operating expenses and claims as they arise, the State Treasurer shall, from the general fund of the State, deposit in the account monthly sufficient funds to pay expenses and claims required by law to be paid, but the amount deposited may not exceed the amount of investment income which the account would have earned from its inception if all such earnings had been credited to the fund."
Reference Revised
SECTION 993. Section 42-7-90 the 1976 Code is amended to read:
"Section 42-7-90. From the State Accident Fund the following expenditures are authorized:
(1) for the payment of any award under this article made by the commission in connection with accidental injury or death of any official or employee of the State, any county or municipality therein, any political subdivision thereof or any agency or institution of the State or a county, municipality, or political subdivision thereof participating hereunder; or
(2) any other expenses authorized by law or approved by the Budget and Control Board."
References Revised
SECTION 994. Section 42-7-200(A) of the 1976 Code of Laws is amended to read:
"(A) There is established within the office of the Second Injury Fund the South Carolina Workers' Compensation Uninsured Employers' Fund to ensure payment of workers' compensation benefits to injured employees whose employers have failed to acquire necessary coverage for employees. The fund must be administered by the director of the Second Injury Fund who shall establish procedures to implement this section.
When an employee makes a claim for benefits pursuant to Title 42 and the State Workers' Compensation Commission determines that the employer is subject to Title 42 and is operating without insurance or as an unqualified self-insurer, the commission shall notify the fund of the claim. The fund shall pay or defend the claim as it considers necessary in accordance with the provisions of Title 42.
When the fund is notified of a claim, the fund may place a lien on the assets of the employer by way of lis pendens or otherwise so as to protect the fund from payments of costs and benefits. If the fund is required to incur costs or expenses or to pay benefits, the fund has a lien against the assets of the employer to the full extent of all costs, expenses, and benefits paid and may file notice of the lien with the clerk of court of any county in which the employer has assets and with the Secretary of State in the same manner as utilized under Title 36 (Uniform Commercial Code). Any of the employer's assets sold or conveyed during the litigation of the claim must be sold or conveyed subject to the lien.
The fund has all rights of attachment set forth in Section 15-19-10 and has the right to proceed otherwise in the collection of its lien in the same manner as the Department of Revenue and Taxation is allowed to enforce a collection of taxes generally pursuant to Section 12-49-10, et seq. When all benefits due the claimant, as well as all expenses and costs of litigation, have been paid, the fund shall file notice of the total of all monies paid with the clerk of court in any county in which the employer has assets and with the Secretary of State. This notice constitutes a judgment against the employer and has priority as a first lien in the same manner as liens of the Department of Revenue and Taxation, subject only to the lien of the Department of Revenue and Taxation pursuant to Section 12-49-10, et seq. If the employer files for bankruptcy or otherwise is placed into receivership, the fund becomes a secured creditor to the assets of the employer in the same manner as the Department of Revenue and Taxation has priority for unpaid taxes, subject only to the lien of the Department of Revenue and Taxation. The fund otherwise has all rights and remedies afforded the Department of Revenue and Taxation as set forth in Section 12-54-10, et seq."
Organization revised and names changed
SECTION 995. Subsections (a), (c), and (d) of Section 42-7-310 of the 1976 Code are amended to read:
"(a) There is hereby established, under the Budget and Control Board, the Second Injury Fund for the purpose of making payments in accordance with the provisions of Section 42-9-400 and this section. The fund shall be administered by a director appointed by the State Budget and Control Board. The State Treasurer shall be the custodian of the fund, and all moneys and securities in the fund shall be held in a separate and distinct trust account by the State Treasurer.
(c) The original funding of the Second Injury Fund shall be in a manner as follows:
(1) From the State Accident Fund, the State Treasurer is hereby authorized and directed to transfer one hundred thousand dollars to be deposited in the Second Injury Fund.
(2) The State Treasurer is hereby authorized and directed to deposit in the Second Injury Fund one third of the workers' compensation premium tax.
(3) The State Treasurer shall deposit to the account of the Second Injury Fund the money authorized paid to the Workers' Compensation Commission under Section 42-9-140.
(d) The funding of the Division of the Second Injury Fund on a continuing basis is by:
(1) deposits to the account of the fund by the State Treasurer of those monies authorized to be paid to the Workers' Compensation Commission under Section 42-9-140; and
(2) equitable assessments upon each carrier which, as used in this section, includes all insurance carriers, self-insurers, and the State Accident Fund. Each carrier, under regulations prescribed by the Workers' Compensation Commission, shall make payments to the fund in an amount equal to that proportion of one hundred seventy-five percent of the total disbursement made from the fund during the preceding fiscal year less the amount of net assets in the fund as of June thirtieth of the preceding fiscal year which the total benefits paid by such carrier bore to the total benefits paid by all carriers during the preceding calendar year. An employer who has ceased to be a self-insurer shall continue to be liable for any assessments into the fund on account of any benefits paid by him during such calendar year. Any assessment levied or established in accordance with this section constitutes a personal debt of every employer or insurance carrier so assessed and is due and payable to the Second Injury Fund when payment is called for by the fund. In the event of failure to pay any assessment upon the date determined by the fund, the employer or insurance carrier may immediately be assessed a penalty in an amount not exceeding ten percent of the unpaid assessment. If the employer or insurance carrier fails to pay the assessment and penalty within thirty days, the director may file a complaint for collection against the employer or insurance carrier in a court of competent jurisdiction for the assessment, penalty, and interest at the legal rate, and the employer/carrier is responsible for attorney's fees and costs. The penalty and interest under this subsection are payable to the Second Injury Fund. At the time of the filing of the complaint, the fund shall also notify the South Carolina Department of Insurance and the South Carolina Workers' Compensation Commission, and these government agencies shall take the appropriate legal and administrative action immediately."
Citation and construction of term
SECTION 996. Upon the effective date of this act, the State Workers' Compensation Fund shall be known as the State Accident Fund, and, other than as provided in Article 1, Chapter 7, Title 42 of the 1976 Code, Section 42-7-10 through Section 42-7-100 of this act, any other reference which may be contained in the 1976 Code of Laws or other statutes to the `State Workers' Compensation Fund' shall be deemed to mean, and shall be changed to, the `State Accident Fund'.
Use of printed material
SECTION 997. All state agencies and departments and all political subdivisions of the State shall exhaust the use of all current forms, stationery, and any other printed material reflecting the name `State Workers' Compensation Fund'.
Department to be headed by director appointed by the Governor
SECTION 998. Section 43-1-10 of the 1976 Code is amended to read:
"Section 43-1-10. There is created the State Department of Social Services, referred to in this title as the state department or department, with such subordinate divisions as may be created or authorized by law. The state department shall be headed by a State Director of Social Services who shall be appointed by the Governor upon the advice and consent of the Senate. The director must possess sound moral character, superior knowledge of and experience in the field of children's services and other social services, and proven administrative ability. The director is subject to removal by the Governor pursuant to the provisions of Section 1-3-240."
Commissioner changed to director
SECTION 999. Section 43-1-50 of the 1976 Code is amended to read:
"Section 43-1-50. The chief executive officer and the administrative head of the state department is a State Director of Social Services, referred to in Chapters 1, 3, 5, 7, 9, 19, and 23 as the State Commissioner or commissioner, who shall hold office until his successor has been appointed and qualified. The director shall be vested with the duty and authority to oversee, manage, and control the operation, administration, and organization of the department subject only to the laws of this State and the United States. He shall receive such compensation as may be established under the provisions of Section 8-11-160 and for which funds have been authorized in the general appropriation act. The director may be required to furnish bond."
Board responsibilities changed to director
SECTION 1000. Section 43-1-60 of the 1976 Code is amended to read:
"Section 43-1-60. The State Director may create:
(1) a State Advisory Council of Social Services to consider and advise with the department on its problems and the remedies therefor, such Council not to exceed fifteen members. The members of such Council shall serve without compensation or allowance for expenses;
(2) such advisory committees as are required by federal law or regulations regarding the programs which the department administers. These advisory committees, as are required by federal law or regulation, shall receive travel and per diem as provided under the law for state boards, commissions, or committees; and
(3) other committees the director may deem necessary for prudent administration of the programs administered by the department. Such committees may be reimbursed travel expenses as provided under the law and regulations for state employees but shall receive no per diem payment.
All subsistence and per diem authorized under the provisions of this section shall be paid from funds available to the Department of Social Services."
Board responsibilities changed to director
SECTION 1001. Section 43-1-70 of the 1976 Code is amended to read:
"Section 43-1-70. The director may appoint and employ such other officers and employees as are authorized and may be necessary to perform the duties placed upon the department by law, and the director shall fix their compensation unless the General Assembly shall do so, but in no event shall the director expend any sums for purposes unauthorized by law. All such compensation shall be fixed by the state department, which shall submit to the State Budget and Control Board all proposed salaries not fixed by law, and the State Budget and Control Board shall pass upon such salaries so that the amounts paid shall be in keeping with the salaries paid to other state employees for similar service and duties. The director may require such officers and employees to furnish bonds in such amounts as it may determine. The selection of such officers and employees shall be made entirely upon the qualification and merit of the individuals so employed."
Board responsibilities changed to director
SECTION 1002. Section 43-1-170 of the 1976 Code is amended to read:
"Section 43-1-170. The director shall have prepared and submit to the Governor and the General Assembly an annual budget, estimating the necessary funds for discharging the duties imposed upon the Department, after taking into consideration federal funds which have been or may be allotted to the State for such purpose."
Board responsibilities changed to director
SECTION 1003. Section 43-1-190 of the 1976 Code is amended to read:
"Section 43-1-190. The director may select the depositories for its funds pending the clearing of assistance checks and require such security on such deposits as it shall deem practicable."
Board responsibilities changed to director
SECTION 1004. Section 43-1-200 of the 1976 Code is amended to read:
"Section 43-1-200. The director shall designate and authorize the proper officers and employees of the state department to issue its requisition upon the Comptroller General for the payment of salaries or other expenses in the administration of Chapters 1, 3, 5, 7, 9, 19, and 23. The Comptroller General shall draw his warrant upon the State Treasurer as directed by such requisition, and the State Treasurer shall pay such warrants by check or otherwise. In paying assistance granted to recipients in accordance with Chapters 1, 3, 5, 7, 9, 19, and 23, the State Department may include in one lump requisition the total amount it will require to meet monthly payments from the various funds set up under the provisions of Chapters 1, 3, 5, 7, 9, 19, and 23 and disburse such assistance to the individual beneficiaries by its own checks, but attached to such lump sum requisition shall be a list of the beneficiaries and the amounts for each making up the total requisitioned."
Board responsibilities changed to director
SECTION 1005. Section 43-1-210 of the 1976 Code is amended to read:
"Section 43-1-210. The director shall prepare and submit to the Governor and the General Assembly a full and detailed report of its activities and expenditures annually, including a statement of its personnel and the salaries paid, and shall likewise make such recommendations and suggestions as it shall deem advisable in the execution of its duties to the General Assembly."
County boards to be advisory; county board responsibilities changed to director
SECTION 1006. Chapter 3, Title 43 of the 1976 Code is amended to read:
"CHAPTER 3
County Departments and Boards of Social Services
Section 43-3-10. There is created in each county of the State a county department of social services, referred to in Chapters 1, 3, 5, 7, 9, 19, and 23 as the county department, and in each county a county board of social services, referred to in Chapters 1, 3, 5, 7, 9, 19, and 23 as the county board, to be composed of not less than three nor more than nine members. Each county board serves in an advisory capacity to the director of the county department of social services and to the director. The members of each county board shall be appointed by the Governor upon the recommendation of a majority, including the Senator, of the county legislative delegation. The terms of the members shall be for three years and until their successors have been appointed and qualify. In case of a vacancy caused by death, removal, resignation or otherwise, such vacancy shall be filled as provided in this section, but only for the unexpired term.
Section 43-3-20. Members of the county boards shall receive the same mileage as is provided by law for state boards, committees and commissions for travel in attending meetings and a per diem, the total per diem not to exceed seventy-five dollars per year.
Section 43-3-30. The members of the respective county boards shall elect one of their members as chairman. Each county board shall meet not less than once a month on regular dates fixed by it unless the director shall designate other regular dates for the various county board meetings. A simple majority of the members shall constitute a quorum and may decide all matters. Each county board may adopt its own rules of procedure unless the state department shall promulgate uniform rules for all county boards to observe.
Section 43-3-40. The director shall select a director for each county department, referred to in Chapters 1, 3, 5, 7, 9, 19 and 23 as the county director, to discharge the duties of such office. The salaries of county directors shall be fixed by the director. In fixing the salaries of the various county directors the director shall consider the individual qualifications of the respective directors and the possibilities of their individual positions. The county director shall be the chief executive officer of the county department and shall perform such duties as are directed by the director or as directed by law.
Section 43-3-50. Each county board may create a county advisory council of social services to consider and advise with the county board on its problems and the remedies therefor, such council not to exceed five members. Members of such councils shall serve without compensation or allowance for expenses.
Section 43-3-60. The respective county directors shall act as the representatives of the director in administering such welfare activities within the county as are provided for by law or as are directed and required by the director when not otherwise provided for by law. Each of such county directors shall see that all laws are enforced for the protection and welfare of minors and the removal of moral menaces to the young and to safeguard and promote the health, education and general welfare of minors. Subject to the rules and regulations of the state department, each of the county directors may use any funds supplied by the county in which the county department operates for such purposes as may be directed by law, in addition to their other duties. Each county director shall serve as the agent of the state department in the performance of such functions as the director may delegate to it.
Section 43-3-70. Each county director shall submit to the state director at such times as the latter shall require the director's estimate of the necessary administrative expenses and expenditures in the county, which, when approved by the state director, shall be authority for the county director to engage such other agents and employees as may be necessary in executing the duties and activities delegated to the county director. All such agents and employees shall measure up to the standards fixed by the state director as to education, training, fitness and experience in social work.
Section 43-3-80. Each county director shall prepare and submit to the state director, as required by the latter, an estimated budget for carrying out the duties and functions delegated to the county director, and shall maintain an accurate record of the county department's activities and all funds received and expended by it.
Section 43-3-90. The respective county directors shall maintain such standards of work, procedure and records as are required by the state director in the discharge of their functions or in the use of any funds provided by the state department.
Section 43-3-100. The records and accounts of each county shall be maintained as prescribed by the director and shall be subject to inspection, supervision, and audit by the state department and in the same manner and with the same effect as may be provided by law for the examination of other public offices.
Section 43-3-110. Each county director shall furnish such reports to the director as the latter shall require, including reports of all receipts and disbursements for assistance, which shall be made in such manner and upon such forms as the director may require. Each county director shall make an annual report of the county department's activities, receipts and disbursements to each member of the county legislative delegation, to the foreman of the county grand jury and to the clerk of court, who shall file such report in his office as a public record. Each county director shall furnish such reports and data as may be required by the state department or the federal government, through its appropriate agency or instrumentality, concerning conditions within its county, the county department's activities and functions and the administration of funds received by the county department."
Commissioner changed to director and department
SECTION 1007. Section 43-5-10 of the 1976 Code is amended to read:
"Section 43-5-10. The Department of Social Services shall be responsible for maintaining uniformity in the administration of public welfare throughout the State. The director shall be the only person authorized to determine and implement the policies of the department. The department shall issue regulations pursuant to Sections 1-23-10 et seq., whenever changes in federal laws and regulations supersede existing state statutes. In adopting regulations the department shall strive for clarity of language which may be readily understood by those administering aid and by those who apply for or receive aid."
Commissioner changed to director
SECTION 1008. Section 43-5-75 of the 1976 Code of Laws is amended to read:
"Section 43-5-75. The director or his authorized agent may, after signed authorization from the applicant or recipient, request and receive from any bank or other financial institution doing business in South Carolina information with respect to the transaction with any such institution of any applicant for or recipient of any form of aid or relief under this article and it shall be the duty of the officers and employees of such institution to furnish the information within ten working days to the department pursuant to the written request of the director."
Department name changed
SECTION 1009. Section 43-5-120 of the 1976 Code of Laws is amended to read:
"Section 43-5-120. (a) The Department of Revenue and Taxation shall provide the director or his designees an abstract of the income tax return requested, or provide information concerning any item of income or expense, including support claimed to have been provided to dependent children or step-children, contained in the income tax return or disclosed by any investigation of the income or return of the applicant or recipient.
(b) The information obtained pursuant to this section shall be used or disclosed only for the purpose of enabling the department to verify or determine the eligibility of an applicant or recipient or to enable the Department of Revenue and Taxation to determine whether tax fraud has been committed.
(c) The applicant or recipient whose income tax records have been requested from the Department of Revenue and Taxation shall be notified by mail that such request has been made at the time of the request.
(d) Any violation or suspected violation of state or federal law determined under this section shall be referred to the appropriate state or federal law enforcement authorities.
(e) The director or his designees shall be subject to the provisions of Section 12-7-1680 of the 1976 Code regarding the confidentiality of state income tax records."
Appeals heard pursuant to Administrative Procedures Act
SECTION 1010. Section 43-5-150 of the 1976 Code is amended to read:
"Section 43-5-150. In the event an application is denied or the amount or terms of a grant or of any withdrawal or modification thereof be deemed inadequate or unjust by the applicant or recipient, the applicant or recipient or anyone acting in his behalf may demand a review of his case before the department by filing his written request for such review with the county department not more than sixty days after notice of its action shall have been received. The county department shall, within ten days, certify its records and data on the case and such additional information as it deems relevant to the department. The department shall promptly grant to the applicant or recipient an opportunity for a fair hearing upon the questions raised by the applicant or recipient. At this hearing any party in interest may appear and present any relevant facts. The department shall produce such further evidence as it may deem necessary and shall certify its findings and decision on the case back to the county department concerned. Appeals from the decision of the department may be made to an administrative hearing examiner pursuant to the Administrative Procedures Act."
Commissioner changed to director
SECTION 1011. Section 43-5-170 of the 1976 Code is amended to read:
"Section 43-5-170. The department may issue subpoenas for witnesses and compel their attendance and the production of papers and writings and the director and employees designated by him may administer oaths and examine witnesses under oath."
Department name changed
SECTION 1012. Section 43-5-220(i) of the 1976 Code is amended to read:
(i) "The department may submit to the Department of Revenue and Taxation for collection and setoff any debt for past-due support owed to the department or owed to an individual not otherwise eligible for collection services who has made application to the department. The debt for past-due support must be at least sixty days in arrears and is in excess of twenty-five dollars as provided in Section 12-7-2240. At the time of the submission, the department shall notify the debtor that his state tax refund will be subject to a debt for past-due support. The notice shall set forth the name of the debtor, the amount of the claimed debt, the intention to set off the refund against the debt, the taxpayer's opportunity to give written notice to contest the setoff within thirty days of the date of mailing of the notice, the appropriate office of the department to which the application for a hearing must be sent, and the fact that failure to apply for a hearing in writing within the thirty-day period will be considered a waiver of the opportunity to contest the setoff. If the debtor makes written application to contest the setoff within thirty days of notification, the department shall provide an opportunity for a hearing and is responsible for refunding any monies wrongfully collected. If no application is made, the debtor's refund must be used to set off the amount owed. From the amount transferred from the Department of Revenue and Taxation, the department shall reimburse the Department of Revenue and Taxation for expenses incurred in administering this program. In the case of an individual not otherwise eligible for collection services, a fee must be imposed by the department to cover all costs. The department shall request that the Department of Revenue and Taxation send to the department notice of the home address, corrected social security number, or additional social security numbers, if more than one is used, of any taxpayer whose name is submitted to the Department of Revenue and Taxation under this subsection."
Commissioner changed to director
SECTION 1013. Section 43-5-550 (f) of the 1976 Code is amended to read:
"(f) The director of the department is also responsible for appointing the chairperson and membership of the committee."
Department name changed
SECTION 1014. Section 43-5-550 (h)(5) of the 1976 Code is amended to read:
"(5) Job marketing and selective placement services must be provided by the DSS Work Support Services staff and through cooperative agreement or contracts with the Employment Security Commission, Department of Vocational Rehabilitation, Job Training Partnership Act (JTPA) and Private Industry Councils (PIC), the Division of State Development of the Department of Commerce, State Board for Technical and Comprehensive Education, or all. Emphasis must be placed on the identification and development of quality placements to assure the continued self-sufficiency of DSS clients served."
Commissioner changed to director; department name changed
SECTION 1015. Section 43-5-620 of the 1976 Code is amended to read:
"Section 43-5-620. (a) The director or his designees, in writing, shall have access to all records and the departments, in cooperation with all other departments of the executive branch, shall establish a single uniform system of information clearance and retrieval, wherever possible.
(b) The bureau of employment security shall provide the department with a statement of earnings clearance upon the request of the department.
(c) Upon request of the department, the Motor Vehicles Division of the Department of Revenue and Taxation shall provide information as to all vehicles owned by the applicant or recipient.
(d) With the exception of the access provided by subsections (b) and (c), the provisions of subsection (a) may not be construed to give the department access to information which would otherwise be considered privileged or confidential pursuant to state or federal law."
Commission on Aging made a division of the Office of the Governor
SECTION 1016. Section 43-21-10 of the 1976 Code is amended to read:
"Section 43-21-10. There is created, in the Office of the Governor, the Division on Aging. The division must be supported by an Advisory Commission on Aging consisting of one member from each congressional district of the State, to be appointed by the Governor, upon the advice and consent of the Senate and one member from the State at large to be appointed by the Governor. The members must be citizens of the State who have an interest in and a knowledge of the problems of the aging. In making appointments to the advisory commission, consideration must be given to mature citizens who are currently providing leadership or are interested in programs for the elderly in the State and also to the diverse problems of aging. The chairman must be elected by the members of the advisory commission from its appointive members for a term of two years and until his successor is elected. Members of the commission shall serve without compensation but shall receive such per diem, mileage, and subsistence authorized by law for members of boards, commissions, and committees. The advisory commission shall meet at least once each quarter and special meetings may be called at the discretion of the director of the division."
Commission made advisory; grounds for removal
SECTION 1017. Section 43-21-20 of the 1976 Code is amended to read:
"Section 43-21-20. The appointed members of the advisory commission shall serve for terms of four years and until their successors are appointed and qualify. The terms of the appointed members expire on June thirtieth and all vacancies must be filled in the manner of the original appointment for the unexpired portion of the term only. No appointed members may serve more than two consecutive terms. The Governor may terminate the appointive members of the commission for any reason pursuant to the provisions of Section 1-3-240, and the reason for the termination of such appointment must be communicated to each member of the commission."
Commission changed to division; authorization of division includes additional provisions
SECTION 1018. Section 43-21-40 of the 1976 Code is amended to read:
"Section 43-21-40. The division shall be the designated state agency to implement and administer all programs of the federal government relating to the aging, requiring acts within the State which are not the specific responsibility of another state agency under the provisions of federal or state law. The division may accept and disburse any funds available or which might become available pursuant to the purposes of this chapter.
The division shall study, investigate, plan, promote, and execute a program to meet the present and future needs of aging citizens of the State, and it shall receive the cooperation of other state departments and agencies in carrying out a coordinated program.
It shall also be the duty of the division to encourage and assist in the development of programs for the aging in the counties and municipalities of this State. It shall consult and cooperate with public and voluntary groups, with county and municipal officers and agencies, and with any federal or state agency or officer for the purpose of promoting cooperation between state and local plans and programs, and between state and interstate plans and programs for the aging.
Without limiting the foregoing, the division is specifically authorized to:
(a) Initiate requests for the investigation of potential resources and problems of the aging people of the State, encourage research programs, initiate pilot projects to demonstrate new services, and promote the training of personnel for work in the field of aging.
(b) Promote community education in the problems of older people through institutes, publications, radio, television, and the press.
(c) Cooperate with, encourage, and assist local groups, both public and voluntary, which are concerned with the problems of the aging.
(d) Encourage the cooperation of agencies in dealing with problems of the aging and offer assistance to voluntary groups in the fulfillment of their responsibility for the aging.
(e) Serve as a clearinghouse for information in the field of aging.
(f) Appoint such committees as it deems necessary for carrying out the purposes of this chapter, such committee members to serve without compensation.
(g) Engage in any other activity deemed necessary by the division to promote the health and well-being of the aging citizen of this State, not inconsistent with the purposes of this chapter or the public policies of the State;
(h) Certify homemakers and home health aides pursuant to the Federal Omnibus Budget Reconciliation Act of 1987 and subsequent amendments to that act and through regulations promulgated in accordance with the Administrative Procedures Act establish and collect fees for the administration of this certification program. Fees collected must be placed on deposit with the State Treasurer. Accounting records must be maintained in accordance with the Comptroller General's policies and procedures. Unused fees may be carried forward to the next fiscal year for the same purpose;
(i) award grants and contracts to public and private organizations for the purpose of planning, coordinating, administering, developing, and delivering aging programs and services;
(j) designate area agencies on aging as required by the Older Americans Act;
(k) administer the Senior Citizens Center Permanent Improvement Fund established pursuant to Section 12-21-3441 and community services programs in accordance with Section 12-21-3590."
Commission changed to division
SECTION 1019. Section 43-21-50 of the 1976 Code is amended to read:
"Section 43-21-50. The division may receive on behalf of the State any grant or grant-in-aid from government sources, or any grant, gift, bequest, or devise from any other source. Title to all funds and other property received pursuant to this section shall vest in the State unless otherwise specified by the grantor."
Commission changed to division
SECTION 1020. Section 43-21-60 of the 1976 Code is amended to read:
"Section 43-21-60. The division shall submit an annual report to the Governor and to the General Assembly on or before January first of each year. The report shall deal with the present and future needs of the elderly and with the work of the division during the year."
Governor to appoint division director; grounds for removal
SECTION 1021. Section 43-21-70 of the 1976 Code is amended to read:
"Section 43-21-70. The Governor may employ a director to be the administrative officer of the division who shall serve at his pleasure and who is subject to removal pursuant to the provisions of Section 1-3-240."
Commission changed to director
SECTION 1022. Section 43-21-80 of the 1976 Code is amended to read:
"Section 43-21-80. The director shall appoint any other personnel and consultants considered necessary for the efficient performance of the duties prescribed by this chapter and shall fix the compensation therefor in accordance with the Human Resource Management Division of the State Budget and Control Board and Merit System requirements."
Commission changed to director
SECTION 1023. Section 43-21-100 of the 1976 Code is amended to read:
"Section 43-21-100. The division shall prepare the budget for its operation which must be submitted to the Governor and to the General Assembly for approval."
Department name changes
SECTION 1024. Section 43-21-120 of the 1976 Code is amended to read:
"Section 43-21-120. There is created the Coordinating Council to the Division on Aging to work with the division on the coordination of programs related to the field of aging, and to advise and make pertinent recommendations, composed of the following: the Director of the Department of Health and Environmental Control, the State Director of Social Services, the Director of the Department of Mental Health, the Superintendent of Education, the Director of the State Department of Labor, Licensing, and Regulation, the Executive Director of the South Carolina State Employment Security Commission, the Director of the Department of Commerce, the Commissioner of the State Department of Vocational Rehabilitation, the Director of the Clemson University Extension Service, the Director of the South Carolina Department of Parks, Recreation and Tourism, the Director of the South Carolina Retirement System, the Executive Director of the South Carolina Municipal Association, the Executive Director of the State Office of Economic Opportunity, the Executive Director of the South Carolina Association of Counties, the Commissioner of the Commission for the Blind, the Director of the Department of Health and Human Services, the Director of the Department of Alcohol and Other Drug Abuse Services, and the Chairperson of the Commission on Women. The council shall meet at least once each six months and special meetings may be called at the discretion of the chairman or upon request of a majority of the members. The chairman of the advisory commission and the director of the Division on Aging, who shall serve as secretary to the council, shall attend the meetings of the council. The director of each agency or department making up the council shall serve as chairman of the council for a term of one year. The office of chairman is held in the order in which the membership of the council is listed in this section."
Department name changes
SECTION 1025. Section 43-21-130 of the 1976 Code is amended to read:
"Section 43-21-130. (A) There is created the Long-Term Care Council (council) composed of the following voting members:
(1) the Governor or his designee;
(2) the Director of the Department of Social Services;
(3) the Director of the Department of Health and Environmental Control;
(4) the Director of the Department of Mental Health;
(5) the Director of the Department of Disabilities and Special Needs;
(6) the Director of the Division on Aging;
(7) the Director of the Department of Health and Human Services;
(8) the Chairman of the Joint Legislative Health Care Planning and Oversight Committee, or his designee;
(9) the Chairman of the Joint Legislative Committee on Aging, or his designee;
(10) one representative of each of the following groups appointed by the Governor annually:
(a) long-term care providers;
(b) long-term care consumers;
(c) persons in the insurance industry developing or marketing a long-term care product.
(B) Each director serving as a council member may authorize in writing a designee to vote on his behalf at two meetings a year. Members appointed by the Governor to represent private groups serve without compensation.
(C) The council shall meet at least quarterly, provide for its own officers, and make an annual report to the General Assembly before January second each year. This report must include new council recommendations."
Commission changed to division
SECTION 1026. Section 43-21-150 of the 1976 Code is amended to read:
"Section 43-21-150. The Division on Aging, with the cooperation of the Long Term Care Council and the Department of Insurance, shall develop and implement a program to educate citizens concerning:
(a) the availability of long term care services;
(b) the lifetime risk of spending some time in a nursing home;
(c) the coverage available for long term care services through Medicare, Medicaid, and private insurance policies, and the limitations of this coverage; and
(d) the availability of home equity conversion alternatives, such as reverse annuity mortgages and sale-leaseback arrangements, in this State and the risks and benefits of these alternatives. This program must be made a part of the Preretirement Education Program of the South Carolina Retirement Systems."
Commission changed to division
SECTION 1027. Section 43-21-160 of the 1976 Code is amended to read:
"Section 43-21-160. (A) There is created the Eldercare Trust Fund of South Carolina to be administered by the South Carolina Division on Aging.
(B) All monies received from the voluntary contribution system established in Section 12-7-2419 or any other contribution, gift, or bequest must be placed on deposit with the State Treasurer in an interest-bearing account.
(C) These funds must be used to award grants to public and private nonprofit agencies and organizations to establish and administer innovative programs and services that assist older persons to remain in their homes and communities with maximum independence and dignity.
(D) The Eldercare Trust Fund shall supplement and augment programs and services provided by or through state agencies but may not take the place of these programs and services.
(E) The South Carolina Division on Aging shall carry out all activities necessary to administer the fund."
Commission changed to division
SECTION 1028. Section 43-21-170 of the 1976 Code is amended to read:
"In administering the Eldercare Trust Fund, the division may, but is not limited to:
(1) assess the critical needs of the frail elderly and establish priorities for meeting these needs;
(2) receive gifts, bequests, and devises for deposit and investment into the trust fund for awarding grants to public and private nonprofit organizations;
(3) solicit proposals for programs that are aimed at meeting identified service needs;
(4) provide technical assistance to public and private nonprofit organizations, when requested, in preparing proposals for submission;
(5) establish criteria for awarding grants; and
(6) enter into contracts for the awarding of grants to public and private nonprofit organizations."
Commission changed to division
SECTION 1029. Section 43-21-180 of the 1976 Code is amended to read:
"Section 43-21-180. (A) Until the assets of the trust fund exceed five million dollars, not more than seventy-five percent of the amount deposited in the trust fund each year from contributions plus all earnings from the investment of monies of the trust fund credited during the previous fiscal year, after allowances for operating expenses, is available for disbursement upon authorization of the division.
(B) When the assets in the trust fund exceed five million dollars, all credited earnings plus all future annual deposits to the trust fund from contributions are available for disbursement upon authorization of the division."
Removal of board members; factors to ensure nondiscrimination in board appointments
SECTION 1030. Section 44-1-20 of the 1976 Code is amended to read:
"Section 44-1-20. There is hereby created the South Carolina Department of Health and Environmental Control which shall be administered under the supervision of the South Carolina Board of Health and Environmental Control. The board shall consist of seven members, one from each congressional district, and one from the State at large to be appointed by the Governor, upon the advice and consent of the Senate. The member who is appointed at large shall serve as the chairman of the board. The Governor may remove the chairman of the board pursuant to Section 1-3-240(B); however, the Governor may only remove the other board members pursuant to Section 1-3-240(C). The terms of the members shall be for four years and until their successors are appointed and qualify, except that of the original appointees, three shall be appointed for two years and four shall be appointed for four years. All vacancies shall be filled in the manner of the original appointment for the unexpired portion of the term only. In making these appointments, race, gender, and other demographic factors should be considered to ensure nondiscrimination, inclusion, and representation to the greatest extent possible of all segments of the population of the State; however, consideration of these factors in making an appointment in no way creates a cause of action or basis for an employee grievance for a person appointed or for a person who fails to be appointed."
Commissioner changed to director; obsolete language deleted; vacancy provisions
SECTION 1031. Section 44-1-40 of the 1976 Code is amended to read:
"Section 44-1-40. The board shall select a director for the department who shall serve a four-year term and who shall have such authority and perform such duties as may be directed by the board. The salary of the director shall be fixed by the board, upon approval of the State Budget and Control Board. For any vacancy occurring in the office of director on or after February 1, 1995, the board, after consultation with and approval by the Governor, must submit the name of its appointee to the Senate for the Senate's advice and consent. On or after February 1, 1995, the board may remove a director only after consultation with and approval by the Governor."
Board to hear appeals from decisions of administrative law judge
SECTION 1032. Section 44-1-50 of the 1976 Code is amended to read:
"Section 44-1-50. The board may conduct such hearings as may be required by law, as considered necessary by the board, and as necessary to hear appeals from decisions of administrative law judges pursuant to Chapter 23 of Title 1. The board does not have the authority to hear appeals from decisions of the Coastal Zone Management Appellate Panel or the Mining Council. Such appeals shall be conducted pursuant to the provisions in Chapters 20 and 30 of Title 48.
The board shall provide for the administrative organization of the department and shall consolidate and merge existing duties, functions, and officers of the former agencies as may be necessary for economic and efficient administration. Provided, however, that the board may appoint such advisory boards as it considers necessary to carry out the functions of Sections 44-1-10 to 44-1-70, and there shall be provided a compensation for their services as provided by the law for members of boards and commissions."
Commissioner changed to director
SECTION 1033. Section 44-1-100 of the 1976 Code is amended to read:
"Section 44-1-100. All sheriffs and constables in the several counties of this State and police officers and health officers of cities and towns shall aid and assist the Director of the Department of Health and Environmental Control and shall carry out and obey his orders, or those of the Department of Health and Environmental Control, to enforce and carry out any and all restrictive measures and quarantine regulations that may be prescribed."
Commissioner changed to director
SECTION 1034. Section 44-2-75(B) of the 1976 Code is amended to read:
"(B) The formation and operation of an insurance pool under this section is subject to approval by the Director of the Department of Insurance who may, after notice and hearing, establish reasonable requirements by regulation for the approval and monitoring of these pools, including prior approval of pool administrators and provisions for periodic examinations of financial condition."
Commissioner changed to department and director
SECTION 1035. Section 44-2-75(C) of the 1976 Code is amended to read:
"(C) The Department of Insurance may disapprove an application for the formation of an insurance pool and may suspend or withdraw approval whenever he finds that the applicant or pool:
(1) has refused to submit its books, papers, accounts, or affairs to the reasonable inspection of the Director of the Department of Insurance or his representative;
(2) has refused, or its officers or agents have refused, to furnish satisfactory evidence of its financial and business standing or solvency;
(3) is solvent or is in such condition that its further transaction of business in this State is hazardous to its members and creditors in this State, and to the public;
(4) has refused or neglected to pay a valid final judgment against it within sixty days after its rendition;
(5) has violated any law of this State or has violated or exceeded the powers granted by its members;
(6) has failed to pay any fees, taxes, or charges imposed in this State within sixty days after they are due and payable, or within sixty days after final disposition or any legal contest with respect to liability therefor; or
(7) has been found insolvent by a court of any other state, or by the insurance commissioner or other proper officer or agency of any other state, and has been prohibited from doing business in that state."
Commissioner changed to director
SECTION 1036. Section 44-3-110 of the 1976 Code is amended to read:
"Section 44-3-110. There is hereby created the Catawba Health District consisting of Chester, Lancaster and York Counties. The Catawba Health District shall be a subdivision of the Department of Health and Environmental Control and shall be under the direction and control of the Department of Health and Environmental Control. The Director of the Department of Health and Environmental Control shall appoint, after consultation with the District Advisory Council, a district medical director whose duty it shall be to protect the public health in the district."
Commissioner changed to director
SECTION 1037. Section 44-3-150 of the 1976 Code is amended to read:
"Section 44-3-150. The Chester County Health Department, the Lancaster County Health Department and the York County Health Department, including county health officers, medical directors and county administrators, shall be directly responsible to and under the direction and control of the district medical director who shall be responsible to and under the direction and control of the Director of the Department of Health and Environmental Control."
State Health and Human Services Finance Commission changed to department
SECTION 1038. Section 44-6-5 of the 1976 Code is amended to read:
"Section 44-6-5. As used in this chapter:
(1) `Department' means the State Department of Health and Human Services.
(2) `Division' means the Division of Research and Statistical Services of the State Budget and Control Board.
(3) `Costs of medical education' means the direct and indirect teaching costs as defined under Medicare.
(4) `Market basket index' means the index used by the federal government on January 1, 1986, to measure the inflation in hospital input prices for Medicare reimbursement. If that measure ceases to be calculated in the same manner, the market basket index must be developed and regulations must be promulgated by the commission using substantially the same methodology as the federal market basket uses on January 1, 1986. Prior to submitting the regulations concerning the index to the General Assembly for approval pursuant to the Administrative Procedures Act, the department shall submit them to the Health Care Planning and Oversight Committee for review.
(5) `Medically indigent' means:
(a) all persons whose gross family income and size falls at or below the federal Community Service Administration guidelines and who meet certain qualifying criteria regarding real property allowance, qualifying services, residency requirements, and other sponsorship, and migrant or seasonal farm workers who have no established domicile in any state; and
(b) all persons whose gross family income and size falls between one hundred percent and two hundred percent of the Community Service Administration guidelines who meet certain other qualifying criteria regarding real property allowance, qualifying services, residency requirements, and other sponsorship and whose medical bill is sufficiently large in relation to their income and resources to preclude full payment. For the purposes of this definition, the qualifying criteria for real property allowance shall permit ownership of up to fifty acres of farmland upon which the family has resided for at least twenty-five years.
(6) `Net inpatient charges' means the total gross inpatient charges, minus the unreimbursed cost of medical education and the unreimbursed cost of providing medical care to medically indigent persons. The cost of care provided by a hospital to meet its Hill-Burton obligation is not considered an unreimbursed cost of providing medical care to medically indigent persons.
(7) `South Carolina growth index' means the percentage points added to the market basket index to adjust for the South Carolina specific experience. The Health Care Planning and Oversight Committee shall complete a study which identifies and quantifies those elements which should be included in the growth index. The elements may include, but are not limited to: population increases, aging of the population, changes in the type and intensity of hospital services, technological advances, the cost of hospital care in South Carolina relative to the rest of the nation, and needed improvements in the health status of state residents. Based on the study, the department shall develop and promulgate regulations for the annual computation of the growth index. Prior to submitting the regulations concerning the index to the General Assembly for approval pursuant to the Administrative Procedures Act, the department shall submit them to the Health Care Planning and Oversight Committee for review. Until a formula for computing the South Carolina growth index is promulgated, the annual index must be six and six-tenths percent which is equal to the average percentage difference between South Carolina hospital expenditures and the federal market basket index for the previous ten years.
(8) `State resident' means a person who is domiciled in South Carolina. A domicile once established is lost or changes only when one moves to a new locality with the intention of abandoning his old domicile and intends to live permanently or indefinitely in the new locale.
(9) `Target rate of increase' means the federal market basket index as modified by the South Carolina growth index.
(10) `General hospital' means any hospital licensed as a general hospital by the Department of Health and Environmental Control."
Members deleted; Governor to appoint director
SECTION 1039. Section 44-6-10 of the 1976 Code is amended to read:
"Section 44-6-10. There is created the State Department of Health and Human Services which shall be headed by a Director appointed by the Governor, upon the advice and consent of the Senate. The director is subject to removal by the Governor pursuant to the provisions of Section 1-3-240."
Commission changed to department
SECTION 1040. Section 44-6-30 of the 1976 Code is amended to read:
"Section 44-6-30. The department shall:
(1) Administer Title XIX of the Social Security Act (Medicaid), including the Early Periodic Screening, Diagnostic and Treatment Program, and the Community Long-Term Care System.
(2) Be designated as the South Carolina Center for Health Statistics to operate the Cooperative Health Statistics Program pursuant to the Public Health Services Act.
(3) Administer the Social Services Block Grant Program.
(4) Be prohibited from engaging in the delivery of services."
Commission changed to department
SECTION 1041. Section 44-6-40 of the 1976 Code is amended to read:
"Section 44-6-40. For all health and human services interagency programs provided for in this chapter, the department shall have the following duties:
(1) Prepare and approve state and federal plans prior to submission to the appropriate authority as required by law for final approval or for state or federal funding, or both.
Such plans shall be guided by the goal of delivering services to citizens and administering plans in the most effective and efficient ways possible.
(2) Compile and maintain in a unified, concise, and orderly form information concerning programs provided for in this chapter.
(3) Continuously review and evaluate programs to determine the extent to which they:
(a) meet fiscal, administrative, and program objectives; and
(b) are being operated cost effectively.
(4) Evaluate plans and programs in terms of their compatibility with state objectives and priorities giving specific attention to areas outlined in Section 44-6-70.
(5) Formulate for consideration and promulgation criteria, standards, and procedures that ensure assigned programs are administered effectively equitably, and economically and in accordance with statewide policies and priorities.
(6) Inform the Governor and the General Assembly as to the effectiveness of the criteria, standards, and procedures promulgated pursuant to item (5) of this section.
(7) Develop in conjunction with other state agencies an information system to provide data on comparative client and fiscal information needed for programs.
(8) Develop a mechanism for local planning.
(9) Obtain from participating state agencies information considered necessary by the department to perform duties assigned to the department."
Commission changed to department
SECTION 1042. Section 44-6-45 of the 1976 Code is amended to read:
"Section 44-6-45. The State Department of Health and Human Services may collect administrative fees associated with accounts receivable for those individuals or entities which negotiate repayment to the agency. The administrative fee may not exceed one and one-half percent of the amounts negotiated and must be remitted to the State Treasurer and deposited to the credit of the general fund of the State."
Commission changed to department
SECTION 1043. Section 44-6-50 of the 1976 Code is amended to read:
"Section 44-6-50. In carrying out the duties provided for in Section 44-6-30 the department shall:
(1) Contract with health and human services agencies for eligibility determination with performance standards regarding quality control as required by law or regulation.
(2) Contract for operation of certified Medicaid management information claims processing system. For the first year of its operation it shall contract for such system with the Department of Social Services.
(3) Contract for other operational components of programs administered under this chapter as considered appropriate.
(4) Monitor and evaluate all contractual services authorized pursuant to this chapter to assure effective performance. Any contract entered into under the provisions of this chapter must be in accordance with the provisions of the South Carolina Consolidated Procurement Code.
(5) Establish a procedure whereby inquiries from members of the General Assembly concerning the department's work and responsibility shall be answered as expeditiously and definitely as possible."
Commission changed to department
SECTION 1044. Section 44-6-70 of the 1976 Code is amended to read:
"Section 44-6-70. A state plan must be prepared by the department for each program assigned to it and the department must also prepare resource allocation recommendations based on such plans. The resource allocation recommendations must be approved pursuant to state and federal law. The state plans must address state policy and priority areas of service with specific attention to the following objectives:
(a) Prevention measures as addressed in health and human services programs.
(b) Achievement of a balanced health care delivery system assuring that regulations, coverage, and reimbursement policies assure that while the most appropriate care is given, tailored to the client's needs, it is delivered in the most cost-effective manner.
(c) Simplification of paperwork requirements.
(d) Achievement of optimum cost effectiveness in administration and delivery of services provided quality of care is assured.
(e) Improvement of effectiveness of third party reimbursement efforts.
(f) Assurance of maximum utilization of private and nonprofit providers in administration and service delivery systems, provided quality of care is assured.
(g) Encouragement of structured volunteer programs in administration and service delivery."
Commission changed to department
SECTION 1045. Section 44-6-80 of the 1976 Code is amended to read:
"Section 44-6-80. The department must submit to the Governor, the State Budget and Control Board, and the General Assembly an annual report concerning the work of the department including details on improvements in the cost effectiveness achieved since the enactment of this chapter and must recommend changes for further improvements.
Interim reports must be submitted as needed to advise the Governor and the General Assembly of substantive issues."
Commission changed to department
SECTION 1046. Section 44-6-90 of the 1976 Code is amended to read:
"Section 44-6-90. The department may promulgate regulations to carry out its duties.
All state and local agencies whose responsibilities include administration or delivery of services which are covered by this chapter shall cooperate with the department and comply with its regulations."
Commission changed to department; provisions deleted
SECTION 1047. Section 44-6-100 of the 1976 Code is amended to read:
"Section 44-6-100. The department employees shall have such general duties and receive such compensation as determined by the director. The director shall be responsible for administration of state personnel policies and general department personnel policies. The director shall have sole authority to employ and discharge employees subject to such personnel policies and funding available for that purpose.
In all instances, the director shall serve as the chief administrative officer of the department and shall have the responsibility of executing policies, directives, and actions of the department either personally or by issuing appropriate directives to the employees.
The goal of the provisions of this section is to ensure that the department's business is conducted according to sound administrative practice, without unnecessary interference with its internal affairs. Public officers and employees shall be guided by this goal and comply with these provisions."
Commission changed to department
SECTION 1048. Section 44-6-140 of the 1976 Code is amended to read:
"Section 44-6-140. (A) To provide cost containment incentives for providers of care to Medicaid recipients, the department shall convert the Medicaid hospital reimbursement system from a retrospective payment system to a prospective payment system by October 1, 1985. The prospective payment system includes, at a minimum, the following elements:
(1) a maximum allowable payment amount established for individual hospital products, services, patient diagnoses, patient day, patient admission, or per patient, or any combination thereof. This payment must be based on hospital costs rather than hospital charges and must be adjusted at least every two years to reflect the most recent audited cost data available. The department shall set by regulation those circumstances under which a hospital may seek an exception. The maximum allowable payment amount must be weighted to allow for the costs of medical education and primary, secondary, or tertiary care considerations;
(2) payment on a timely basis to the hospital by the commission or patient or both, of the maximum allowable payment amount determined by the commission; and
(3) acceptance by the hospital of the maximum payment amount as payment in full, which includes any deductible or copayment provided for in the state Medicaid program.
(B) The department shall at the same time implement other cost containment measures which include, but are not limited to:
(1) utilization reviews for appropriateness of treatment and length of stay;
(2) preadmission certification of nonemergency admissions;
(3) mandatory outpatient surgery in appropriate cases;
(4) a second surgical opinion pilot study; and
(5) procedures for encouraging the use of outpatient services. The department, to the fullest extent possible, shall utilize information required in this subsection in the form hospitals are presently submitting the information to other governmental agencies or in the form hospitals are presently utilizing the information within the hospital."
Commission changed to department
SECTION 1049. Section 44-6-146 of the 1976 Code is amended to read:
"Section 44-6-146. (A) Every fiscal year the State Treasurer shall withhold from the portion of the Local Government Fund allotted to the counties a sum equal to fifty cents per capita based on the population of the several counties as shown by the latest official census of the United States. The money withheld by the State Treasurer must be placed to the credit of the commission and used to provide Title XIX (Medicaid) services.
(B) County governments are assessed an additional thirteen million dollars annually for use as matching funds for Medicaid services. Of these funds, seven and a half million dollars must be deposited into the Medicaid Expansion Fund created by Section 44-6-155. The department shall assess each county its share of the thirteen million dollars based on a formula which equally weighs the following factors in each county: property value, personal income, net taxable sales, and the previous two years of claims against the medically indigent assistance fund or program against county residents. If a trust fund has been established in a county to fund indigent care in the county, contributions on behalf of the county must be credited against the county assessment.
(C) Within thirty days of the first day of the state's fiscal year, and on the first day of the other three quarters, each county shall remit one-fourth of its total assessment to the department. The department shall allow a brief grace period during which late payments are not subject to interest or penalty. Any county which fails to pay its assessment within the time allotted must pay, in addition to the assessment, a penalty of five percent of the assessment and interest at one and one-half percent per month from the date the assessment was originally due to the date of the payment of the assessment and penalty. The department may in its discretion waive or reduce the penalty or interest or any part thereof."
Commission changed to department
SECTION 1050. Section 44-6-150 of the 1976 Code is amended to read:
"Section 44-6-150. (A) There is created the South Carolina Medically Indigent Assistance Program, administered by the department. The program is authorized to sponsor up to fifteen million dollars of inpatient hospital care, for which hospitals shall receive no reimbursement except as provided in Section 44-6-155. Any general hospital equipped to provide the necessary treatment must:
(1) admit a patient sponsored by the program; and
(2) accept the transfer of a patient sponsored by the program from a hospital which is not equipped to provide the necessary treatment. In addition to or in lieu of any action taken affecting the license of the hospital, when it is established that any officer, employee, or member of the hospital medical staff has violated the provisions of this section, the South Carolina Department of Health and Environmental Control shall require the hospital to pay a civil penalty of up to ten thousand dollars.
(B) Hospital charges for patients sponsored by the Medically Indigent Assistance Program must be adjusted by the most recent audited cost to charge ratio when used to calculate:
(1) claims against the Medically Indigent Assistance Program by county residents as required by Section 44-6-146(B);
(2) the fifteen million dollar limit on hospital care sponsored by the Medically Indigent Assistance Program; and
(3) hospital reimbursements authorized by Section 44-6-155.
(C) In administering the Medically Indigent Assistance Program, the department shall determine:
(1) the method of administration, including the specific procedures and materials to be used statewide in determining eligibility for the program;
(a) In nonemergency cases, the patient shall submit the necessary documentation to his county of residence or its designee to determine eligibility before admission to the hospital.
(b) In case of an emergency, the hospital shall admit the patient pursuant to Section 44-7-260. If a hospital determines that the patient could be eligible for the program, it shall forward the necessary documentation along with the patient's bill and other supporting information to the patient's county of residence or its designee for processing. A county may request that all claims by its residents be submitted to the county or its designee for review before being forwarded to the department for processing. If a county exercises its option to review claims, the reviews must be completed within fifteen days.
(2) the population to be served including eligibility criteria based on family income and resources. Eligibility is determined on an episodic basis for a given spell of illness. Eligibility criteria must be uniform statewide and may include only those persons who meet the definition of medically indigent;
(3) the health care services covered;
(4) a system to reimburse hospitals if funds are available as provided in Section 44-6-155;
(5) requirements for hospitals to report information needed to administer the program. This includes, but is not limited to, each sponsored patient's name, program authorization number, county of residence, primary diagnosis, and hospital charges;
(6) a process by which any claim or eligibility determination can be contested and appealed; and
(7) a method for processing claims. The program may not sponsor a patient until all other means of paying for or providing services have been exhausted. This includes Medicaid, Medicare, health insurance, employee benefit plans, or other persons or agencies required by law to provide medical care for the person. Hospitals may require eligible patients whose gross family income is between one hundred percent and two hundred percent of the federal poverty guidelines, to make a copayment based on a sliding payment scale developed by the department based on income and family size.
Nothing in this section may be construed as relieving hospitals of their Hill-Burton obligation to provide unreimbursed medical care to indigent persons."
Commission changed to department
SECTION 1051. Section 44-6-155 of the 1976 Code is amended to read:
"Section 44-6-155. (A) There is created the Medicaid Expansion Fund into which must be deposited:
(1) funds collected pursuant to Section 44-6-146;
(2) funds collected pursuant to Section 12-23-810; and
(3) funds appropriated pursuant to subsection (B) of this section. This fund must be separate and distinct from the general fund. These funds are supplementary and may not be used to replace general funds appropriated by the General Assembly or other funds used to support Medicaid. These funds and the programs specified in subsection (C) are exempt from any budgetary cuts, reductions, or eliminations caused by the lack of general fund revenues. Earnings on investments from this fund must remain part of the separate fund and must not be deposited in the general fund.
(B) The department shall estimate the amount of federal matching funds which will be spent in the State during the next fiscal year due to the changes in Medicaid authorized by subsection (C) of this section. Based on this estimate, the General Assembly shall appropriate to the Medicaid Expansion Fund state funds equal to the additional state revenue generated by the expenditure of these federal funds.
(C) Monies in the fund must be used for the following purposes:
(1) to provide Medicaid coverage to pregnant women and infants with family incomes above one hundred percent but below one hundred eighty-five percent of the federal poverty guidelines;
(2) to provide Medicaid coverage to children aged one through six with family income below federal poverty guidelines;
(3) to provide Medicaid coverage to aged and disabled persons with family income below federal poverty guidelines;
(4) to provide Medicaid coverage through a medically needy program to eligible persons in families with medical expenses which reduce the net family income below state and federal standards;
(5) to provide Medicaid reimbursement for hospital patients in need of subacute care, including patients in swing beds;
(6) to provide a pool of at least forty-four million dollars for the sole purpose of adjusting Medicaid reimbursement for hospitals as provided in Section 44-6-140(A)(1). Funds in the pool not immediately used for this purpose must be carried forward for eventual use for this purpose;
(7) to provide up to $240,000 to reimburse the Division of Research and Statistical Services and hospitals for the cost of collecting and reporting data pursuant to Section 44-6-170; and
(8) to supplement state funds needed to administer items (3) and (4), not to exceed $700,000.
(D) All funds not expended for the purposes specified above must be used at the end of the fiscal year to reimburse hospitals for care given to patients sponsored by the Medically Indigent Assistance Program during the same fiscal year.
(E) Any funds not expended for the purposes specified in subsections (C) and above during a given year are carried forward to the succeeding year for the same purposes."
Commission changed to department
SECTION 1052. Section 44-6-160 of the 1976 Code is amended to read:
"Section 44-6-160. (A) By August first of each year, the department shall compute and publish the annual target rate of increase for net inpatient charges for all general hospitals in the State. The target rate of increase will be established for a twelve-month period from October first through September thirtieth of the following year. Once established, the target rate of increase must not be amended during the year except as provided in subsection (B) of this section. The department shall monitor the performance of the hospital industry to contain costs, specifically as evidenced by the annual rate of growth of net inpatient charges. If the department determines that the annual rate of increase in net inpatient charges for the hospital industry has exceeded the target rate of increase established for that year, the department shall appoint an expert panel for the purpose of analyzing the financial reports of each hospital whose net inpatient charges exceeded the target rate of increase. The panel's review shall take into consideration service volume, intensity of care, and new services or facilities. The panel shall consist of at least three members who have broad experience, training, and education in the field of health economics or health care finance. The panel shall report its findings and recommendations, including recommended penalties or sanctions, to the department. The department shall decide what, if any, penalty it will impose within three months of receiving all necessary data.
(B) The department may impose penalties or sanctions it considers appropriate. Penalties must be prospective. Financial penalties are limited to a reduction in a hospital's target rate of increase for the following year. Any reduction in a hospital's target rate of increase for the next year must not be greater than the amount the hospital exceeded the industry's target rate of increase for the previous year. Once a hospital is sanctioned, it must be reviewed annually until it succeeds in remaining below its target rate of increase.
(C) [REPEALED]"
Commission changed to department
SECTION 1053. Section 44-6-170 of the 1976 Code is amended to read:
"Section 44-6-170. (A) In order to develop a timely and meaningful data base and to assist the department in its efforts to properly carry out its functions as provided by the South Carolina Medically Indigent Assistance Act, the Division of Research and Statistical Services of the State Budget and Control Board shall require the standardized reporting by hospitals of the following hospital-specific information for the twelve-month period from October first through September thirtieth for each federal fiscal year, and the department shall reimburse the division for the cost of collecting and preparing this information. This information must be submitted by February first of the following year:
(1) total gross revenue, including:
(a) gross inpatient revenue;
(b) Medicare gross revenue;
(c) Medicaid gross revenue;
(d) South Carolina Medically Indigent Assistance Fund gross revenue;
(2) total deductions from gross revenue, including:
(a) Medicare contractual allowances;
(b) Medicaid contractual allowances;
(c) other contractual allowances; and
(d) bad debts;
(3) total direct costs and medical education
(a) reimbursed; and
(b) unreimbursed;
(4) total indirect costs of medical education
(a) reimbursed; and
(b) unreimbursed;
(5) total costs of care for medically indigent
(a) reimbursed; and
(b) unreimbursed;
(6) total admissions, including:
(a) Medicare admissions;
(b) Medicaid admissions;
(c) South Carolina Medically Indigent Assistance Program admissions; and
(d) other admissions;
(7) total patient days;
(8) average length of stay;
(9) total outpatient visits;
(10) extracts of the following medical record information:
(a) patient date of birth;
(b) patient number;
(c) patient sex;
(d) patient county of residence;
(e) patient zip code;
(f) patient race;
(g) date of admission;
(h) source of admission;
(i) type of admission;
(j) discharge date;
(k) principal and up to four other diagnoses;
(l) principal procedure and date;
(m) patient status at discharge;
(n) up to four other procedures;
(o) hospital identification number;
(p) principal source of payment; and
(q) total charges and components of those charges, including associated room and board units;
(r) patient medical record or chart number; and
(s) attending physician and primary surgeon. In addition, the division shall collect data as recommended by the Health Care Planning and Oversight Committee pursuant to subsection (C) of this section and other data relative to the medically indigent population, including: demographic characteristics, economic status, utilization of health care services, and fluctuations in the population over time. These requirements are promulgated by regulations in accordance with the Administrative Procedures Act.
(B) It is the intent of the South Carolina Medically Indigent Assistance Act and of regulations promulgated pursuant thereto to protect the confidentiality of individual patient information, physician identifiers, and the proprietary information of hospitals. Only the data collected pursuant to the Health Care Planning and Oversight Committee recommendations, as provided in this section, may be collected, analyzed, and released to nongovernmental entities and individuals as directed by that committee. All other patient, physician, and hospital-specific information collected pursuant to subsection (A) of this section is confidential and must not be released to any nongovernmental entity or individual unless release is made of statistical information so that no individual patient, physician, or hospital can be identified, except that release must be made, no less than semi-annually, of the patient medical record information listed in Section 44-6-170(A)(10)(a)-(s) to submitting hospitals, and the information listed in Section 44-6-170(A)(10)(a)-(r) to the hospitals' designee. The information provided to any governmental agency as provided in this section must not be released pursuant to the Freedom of Information Act in the form in which it was provided to any other party. For purposes of this section, governmental agency does not include a governmental hospital.
(C) Because accurate, comparable data on the costs and usage of health care services is not currently available in South Carolina, it is extremely difficult to make careful policy choices for future health care cost management strategies. Neither the public sector nor the private sector purchasers of health care have available sufficient data to enable them to make informed choices among health care providers in the market place. The lack of a uniform system for the collection and analysis of data, and the lack of full participation by providers, purchasers, and payors has led to inadequate and unusable data. In order to remedy this problem, it is necessary to create a uniform system for the collection, analysis, and distribution of health care cost data. The purposes of this data system are to ensure that data is available to make valid comparisons of prices among providers of services and to support ongoing analysis of the health care delivery system. Accordingly, after receiving comments and recommendations from health care providers, consumers, and governmental agencies, the Health Care Planning and Oversight Committee shall recommend to the Division:
(1) the data elements to be collected and analyzed. These elements may include, but are not limited to, those already listed in subsection (A) of this section;
(2) the format in which the data may be released to the public; and
(3) the frequency with which the data should be collected and released on a routine basis. In addition to hospitals licensed by the Department of Health and Environmental Control, effective July 1, 1991, the provisions of this section apply to a hospital licensed in another state if the hospital does business in South Carolina. Information required by subsection (A)(1) through (9) of this section must be submitted for all patients. Information required by subsection (A)(7) of this section also must identify total patient days attributed to South Carolina residents. Information required by subsection (A)(10) of this section must be submitted only for residents of South Carolina. A hospital is considered to be doing business in this State if the hospital, or the firm, corporation, association, or partnership which owns or operates the hospital, either directly or through a subsidiary corporation, establishes a physical presence in this State by owning, leasing, subleasing, or by any other means arranges to provide space to engage in or transact activity for financial profit or gain."
Commission changed to department
SECTION 1054. Section 44-6-180 of the 1976 Code is amended to read:
"Section 44-6-180. (A) Patient records, received by counties, the department, or other entities involved in the administration of the program created pursuant to Section 44-6-150 are confidential. Patient records and physician and hospital identifiers gathered pursuant to Section 44-6-170 are also confidential. This information collected pursuant to Section 44-6-170(A)(10)(a)-(s) must not be released to nongovernmental entities or individuals unless release is made of aggregate statistical information so that no individual patient, physician, or hospital can be identified, except as provided in Section 44-6-170(C). Nothing in this subsection may be construed as limiting access to information needed by any governmental agency as provided in Section 44-6-170(B) or by the submitting hospitals or their designee as provided in Section 44-6-170(B).
(B) Any person violating the provisions of this section is guilty of a misdemeanor, and upon conviction, must be fined not more than five thousand dollars or imprisoned not more than one year, or both."
Commission changed to department; administrative law judge to hear appeals
SECTION 1055. Section 44-6-190 of the 1976 Code is amended to read:
"Section 44-6-190. The department may promulgate regulations pursuant to the Administrative Procedures Act. Appeals from decisions by the department are heard pursuant to the Administrative Procedures Act, Administrative Law Judge, Article 5, Chapter 23 of Title 1 of the 1976 Code. The department shall promulgate regulations to comply with federal requirements to limit the use or disclosure of information concerning applicants and recipients to purposes directly connected with the administration of the Medicaid program."
Commission changed to department
SECTION 1056. Section 44-6-220 of the 1976 Code is amended to read:
"Section 44-6-220. All applications for admission to a nursing home must contain a notice, to be signed by the applicant, stating: `Eligibility for Medicaid-sponsored long-term care services is based on income and medical necessity. To qualify for assistance through the Medicaid program, a nursing home patient must need intermediate or skilled nursing care as determined through an assessment conducted by Medicaid program staff. The fact that a patient has already been admitted to a nursing home is not considered in this determination. It is possible that a patient could exhaust all other means of paying for nursing home care and meet Medicaid income criteria but still be denied assistance due to the lack of medical necessity.
It is recommended that all persons seeking admission to a nursing home be assessed by the Medicaid program prior to admission. This assessment will provide information about the level of care needed and the viability of community services as an alternative to admission. The department may charge a fee, not to exceed the cost of the assessment, to persons not eligible for Medicaid-sponsored long-term care services.'"
Commission changed to department
SECTION 1057. Section 44-6-300 of the 1976 Code is amended to read:
"Section 44-6-300. The Department of Health and Human Services shall establish child development services in the following counties: Allendale, Bamberg, Barnwell, Calhoun, Cherokee, Chester, Chesterfield, Fairfield, Jasper, Lexington, Newberry, and Orangeburg. The services established in each county must provide at least thirty slots for the children of that county."
Name changed
SECTION 1058. Section 44-6-310 of the 1976 Code is amended to read:
"Section 44-6-310. The Department of Health and Human Services shall expand existing child development services in the following counties: Beaufort, Charleston, Florence, Greenville, Hampton, and Richland. The services in each county must be expanded to provide at least twenty new slots but no more than sixty new slots for the children of each county."
Name changed
SECTION 1059. Section 44-6-320 of the 1976 Code is amended to read:
"Section 44-6-320. The establishment and expansion of the child development services mandated by Sections 44-6-300 and 44-6-310 must be accomplished within the limits of the appropriations provided by the General Assembly in the annual General Appropriations Act for this purpose and in accordance with the Department of Health and Human Services policies for child development services funded through Title XX."
Definition of "commission" deleted
SECTION 1060. Section 44-6-400 of the 1976 Code is amended to read:
"Section 44-6-400. As used in this article:
(1) `Department' means the Department of Health and Environmental Control.
(2) `Nursing home' means a facility subject to licensure as a nursing home by the department under Article 2, Chapter 7 of Title 44 which has been certified for participation in the Medicaid program, or which has been dually certified for participation in the Medicaid and Medicare programs.
(3) `Ombudsman' means the State Ombudsman established under Chapter 38 of Title 43.
(4) `Resident' means a person who resides or resided in a nursing home during a period of an alleged violation."
Name changed
SECTION 1061. Section 44-6-410 of the 1976 Code is amended to read:
"Section 44-6-410. The department shall notify the Department of Health and Human Services if it finds that a nursing home no longer meets a requirement for participation in the Medicaid program. The Department of Health and Human Services may take action authorized by this article against a nursing home it determines to be out of compliance with the requirements for participation in the Medicaid program. The action taken must be proportionate to the severity of the violation as set forth by regulations of the department of Health and Human Services."
Name changed
SECTION 1062. Section 44-6-420 of the 1976 Code is amended to read:
"Section 44-6-420. When the department of Health and Human Services is notified that a nursing home is in violation of one of the requirements for participation in the Medicaid program, it, based on the severity of the violation as set forth by regulation, may:
(1) deny payment under the Medicaid program;
(2) assess and collect monetary penalties set forth in Section 44-6-470;
(3) appoint temporary management in accordance with the provisions of this article. The department of Health and Human Services may promulgate regulations to assure prompt compliance with the requirements for participation in the Medicaid program and shall monitor a nursing home that repeats violations."
Name changed
SECTION 1063. Section 44-6-430 of the 1976 Code is amended to read:
"Section 44-6-430. If a nursing home violates one of the requirements for participation in the Medicaid program, and the violation immediately jeopardizes the health or safety of the patients, the department of Health and Human Services may initiate an emergency action in a court of competent jurisdiction to appoint a receiver to correct the deficiencies and to temporarily manage the operations of the nursing home. The court may immediately appoint a receiver when affidavits, testimony, or other evidence presented by the Department of Health and Human Services show that the conditions immediately jeopardize the health or safety of the patients to the extent that emergency measures must be invoked. A copy of the affidavits and order must be served on the nursing home owner or his agent for service of process, must be sent to the State Ombudsman, and must be posted in a conspicuous place inside the nursing home not later than twenty-four hours after issuance of the order. A full hearing must be held not later than twenty days after the issuance of the order unless the owner consents to a later date."
Name changed
SECTION 1064. Section 44-6-440 of the 1976 Code is amended to read:
"Section 44-6-440. (A) The Department of Health and Human Services may find that there is a need for temporary management of a nursing home due to a violation of one of the requirements for participation in the Medicaid program, but the violation does not immediately jeopardize the health or safety of the patients. In this event, it shall file a complaint with the Circuit Court in the county where the nursing home is located and request appointment of a receiver pending the closure of the nursing home or while improvements are being made to correct the deficiencies. The complaint must specify the violations that warrant the appointment of a receiver, including, but not limited to:
(1) facts showing that there exists in the nursing home one or more conditions in violation of the requirements for participation in the Medicaid program; and
(2) evidence that these facts have been brought to the attention of the owner and administrator of the nursing home and that these persons have been unwilling or unable to remedy the condition within a reasonable period of time or that there have been repeated violations despite previous assurances or actions to remedy the condition.
(B) The court shall hold a hearing not later than forty-five days after the date the complaint is filed. Notice of the hearing must be given to the State Ombudsman not less than five days before the hearing. Notice must be posted by the Department of Health and Human Services in a conspicuous place inside the nursing home for not less than five days before the hearing.
(C) Upon a full evidentiary hearing, the court may:
(1) appoint a receiver as authorized in this article;
(2) allow the nursing home to remove or remedy the conditions in accordance with Section 44-6-460;
(3) grant other relief as the court considers just and proper; or
(4) dismiss the complaint."
Name changed
SECTION 1065. Section 44-6-460 of the 1976 Code is amended to read:
"Section 44-6-460. The owner or administrator of the nursing home may apply to the court for permission to correct the conditions specified in the complaint. If he demonstrates the ability to undertake promptly and completely the actions required, then the court, instead of appointing a receiver, may issue an order permitting him to take corrective action in accordance with a time schedule and subject to conditions. A bond must be posted in an amount set by the court as security for the performance of the corrective action. If it appears that the nursing home owner or administrator is not complying with the order, the Department of Health and Human Services may petition the court for a hearing to determine whether an order appointing a receiver should be issued immediately. Notice must be given to the parties to the proceeding. If, after a hearing, the court determines that the order is not being complied with, the court shall issue a final order appointing a receiver as authorized in this article. If the person has posted a bond to secure completion of actions ordered by the court, that bond may be forfeited and used by the receiver to complete corrective actions."
Name changed
SECTION 1066. Section 44-6-470 of the 1976 Code is amended to read:
"Section 44-6-470. A nursing home found to be in violation of one of the requirements for participation in the Medicaid program may be fined up to twenty-five hundred dollars a day by the Department of Health and Human Services. A nursing home that repeats violations may be fined up to five thousand dollars a day. All fines are assessed and collected with interest from the date of notification of the deficiencies until the date they are corrected. The amount of the fines must be proportionate to the severity of the violation as set forth by regulation of the Department of Health and Human Services. Funds collected by the Department of Health and Human Services as a result of the imposition of the fines must be used to protect the health and property of the patients in the affected nursing home, including the relocation of patients to other nursing homes. A receiver appointed by the court to temporarily manage an affected nursing home, may use the funds for the cost of relocating patients to other nursing homes, if necessary, and for maintenance of operation of the nursing home pending correction of the deficiencies. He may also reimburse patients for personal funds that may have been lost as a result of the violations."
Name changed
SECTION 1067. Section 44-6-500 of the 1976 Code is amended to read:
"Section 44-6-500. The Department of Health and Human Services, receiver, owner, or licensee may make a motion to terminate the receivership on grounds that the conditions complained of have been eliminated or remedied and that the nursing home has the management capability to ensure continued compliance with the requirements for participation in the Medicaid program. The court, following an inspection by the department, may review the Department of Health and Human Services's findings and terminate the receivership subject to terms it determines necessary or appropriate to prevent any condition in the complaint from recurring."
Name changed
SECTION 1068. Section 44-6-520 of the 1976 Code is amended to read:
"Section 44-6-520. No provision of this article limits the right of an owner to sell, lease, or mortgage any nursing home subject to receivership under this article upon the owner's presenting satisfactory evidence to the court that:
(1) compliance with the applicable requirements of the Department of Health and Human Services has been achieved; or
(2) the purchaser, lessee, or mortgagor has assumed the responsibility for achieving such compliance and has filed an acceptable plan of correction with the commission. Upon sale of the nursing home, the receivership must be terminated."
Name changed
SECTION 1069. Section 44-6-530 of the 1976 Code is amended to read:
"Section 44-6-530. Before instituting an action under this article, the Department of Health and Human Services shall determine if the Secretary of the United States Department of Health and Human Services has jurisdiction under federal law. In such cases, it shall coordinate its efforts with the secretary to maintain an action against the nursing home. In an action against a nursing home owned and operated by the State of South Carolina, the secretary has exclusive jurisdiction."
Obsolete language deleted
SECTION 1070. Section 44-9-20 of the 1976 Code is amended to read:
"Section 44-9-20. All the powers and duties vested in the South Carolina Mental Health Commission immediately prior to March 26, 1964 are hereby transferred to and vested in the Department of Mental Health. All records, files and other papers belonging to the South Carolina Mental Health Commission shall be continued as part of the records and files of the Department of Mental Health."
Removal of Mental Health Commission members
SECTION 1071. Section 44-9-30 of the 1976 Code is amended to read:
"Section 44-9-30. (A) (1) There is created the governing board for the State Department of Mental Health known as the South Carolina Mental Health Commission. The commission consists of seven members appointed by the Governor, upon the advice and consent of the Senate, as follows:
(a) one member from each of the six congressional districts;
(b) one member from the State at large.
(2) The Governor shall consider consumer and family representation when appointing members.
(B) The members serve for terms of five years and until their successors are appointed and qualify. The terms of no more than two members may expire in one year. The Governor may remove a member pursuant to the provisions of Section 1-3-240. A vacancy must be filled by the Governor for the unexpired portion of the term.
(C) The commission shall determine policies and promulgate regulations governing the operation of the department and the employment of professional and staff personnel.
(D) The members shall receive the same subsistence, mileage, and per diem provided by law for members of state boards, committees, and commissions."
Commissioner changed to director
SECTION 1072. Section 44-9-40 of the 1976 Code is amended to read:
"Section 44-9-40. The Mental Health Commission shall appoint and remove a State Director of Mental Health, who is the chief executive of the State Department of Mental Health. Subject to the supervision and control of the Mental Health Commission, the state director shall administer the policies and regulations established by the commission. The director must be a person of proven executive and administrative ability with appropriate education and substantial experience in the field of mental illness treatment. The director must appoint and remove all other officers and employees of the Department of Mental Health, subject to the approval of the Mental Health Commission."
Commissioner changed to director
SECTION 1073. Section 44-9-50 of the 1976 Code is amended to read:
"Section 44-9-50. The Department of Mental Health may be divided into such divisions as may be authorized by the Director of Mental Health and approved by the commission. These divisions may be headed by deputy commissioners, but any deputy commissioner heading a medical division must be a medical doctor duly licensed in South Carolina. One of the divisions shall be a Division on Alcohol and Drug Addiction which shall have primary responsibility in the State for treatment of alcohol and drug addicts. One of the divisions shall be a Division for Long-Term Care which shall have primary responsibility for care and treatment of elderly persons who are mentally and physically handicapped to the extent that their needs are not met in other facilities either public or private."
Commissioner changed to director
SECTION 1074. Section 44-9-60 of the 1976 Code is amended to read:
"Section 44-9-60. The Director of the Department of Mental Health may appoint a superintendent of each hospital, with the approval of the Mental Health Commission. Each superintendent shall be knowledgeable in the treatment of the mentally ill and in hospital administration. The superintendent of each institution under the jurisdiction of the Department of Mental Health shall be responsible for the employment of all personnel at the institution, subject to the approval of the director of the department. The director may serve as superintendent of one or more hospitals or other mental health facilities."
Commissioner changed to director
SECTION 1075. Section 44-9-160 of the 1976 Code is amended to read:
"Section 44-9-160. Wherever in the 1976 Code reference is made to the State Hospital, it shall mean a state hospital; wherever reference is made requiring the signature of the superintendent of any mental health facility, it shall mean the superintendent or his designee; and wherever reference is made to the State Commissioner of Mental Health, it shall mean the State Director of the Department of Mental Health."
Removal of Community Mental Health Board members
SECTION 1076. Section 44-15-60 of the 1976 Code is amended to read:
"Section 44-15-60. Every county, city, town, or political subdivision, or combination of them, establishing a community mental health services program, before it may come within this article, shall establish a community mental health board to be made up of not less than seven nor more than fifteen members. Membership of the boards, so far as may be practicable, must be representatives of local health departments, medical societies, county welfare boards, hospital boards, and lay associations concerned with mental health as well as labor, business, and civic groups, and the general public. At least one member of the board must be a medical doctor licensed to practice medicine in this State. The members must be appointed by the Governor upon the recommendation of a majority of the members of the legislative delegations of the counties participating. The legislative delegations and the Governor shall consider consumer and family representation when recommending and appointing members to the board. By resolution a county legislative delegation may delegate to the governing body of the county they represent the authority to recommend board members to the Governor. The resolution is not revocable, and copies of the resolution must be sent to the Governor, the Department of Mental Health, and the governing bodies of the counties concerned. The number of members representing each county must be proportional to its share of the budget. The term of office of each member of the community mental health board is four years and until the member's successor is appointed. Vacancies must be filled for the unexpired term in the same manner as original appointments. A member of a board may be removed by the Governor pursuant to the provisions of Section 1-3-240. A person may serve consecutive terms."
Commissioner changed to director
SECTION 1077. Section 44-15-80(8) of the 1976 Code is amended to read:
"(8) Employ personnel, certified by the merit system as classified according to existing job classifications, including a State Director of Community Mental Health Services, to be under the supervision of the Director of the Department of Mental Health, to implement the provisions of this article."
Chapter changed to "South Carolina Mental Retardation, Related Disabilities, Head Injuries, and Spinal Cord Injuries Act"; provisions and names revised
SECTION 1078. Chapter 20, Title 44 of the 1976 Code is amended to read:
"CHAPTER 20
South Carolina Mental Retardation,
Related Disabilities, Head Injuries, and
Spinal Cord Injuries Act
Article 1
General Provisions
Section 44-20-10. This chapter may be cited as the `South Carolina Mental Retardation, Related Disabilities, Head Injuries, and Spinal Cord Injuries Act'.
Section 44-20-20. The State of South Carolina recognizes that a person with mental retardation, a related disability, head injury, or spinal cord injury is a person who experiences the benefits of family, education, employment, and community as do all citizens. It is the purpose of this chapter to assist persons with mental retardation, related disabilities, head injuries, or spinal cord injuries by providing services to enable them to participate as valued members of their communities to the maximum extent practical and to live with their families or in family settings in the community in the least restrictive environment available.
When persons with mental retardation, related disabilities, head injuries, or spinal cord injuries cannot live in communities or with their families, the State shall provide quality care and treatment in the least restrictive environment practical.
In order to plan and coordinate state and locally funded services for persons with mental retardation, related disabilities, head injuries, or spinal cord injuries, a statewide network of local boards of disabilities and special needs is established. Services will be delivered to clients in their homes or communities through these boards and other local providers.
It is recognized that persons with mental retardation, related disabilities, head injuries, or spinal cord injuries have the right to receive services from public and other agencies that provide services to South Carolina citizens and to have those services coordinated with the services needed because of their disabilities.
South Carolina recognizes the value of preventing mental retardation, related disabilities, head injuries, and spinal cord injuries through education and research and supports efforts to this end.
The State recognizes the importance of the role of parents and families in shaping services for persons with mental retardation, related disabilities, head injuries, or spinal cord injuries as well as the importance of providing services to families to enable them to care for a family member with these disabilities.
Admission to services of the South Carolina Department of Disabilities and Special Needs does not terminate or reduce the rights and responsibilities of parents. Parental involvement and participation in mutual planning with the department to meet the needs of the client facilitates decisions and treatment plans that serve the best interest and welfare of the client.
Section 44-20-30. As used in this chapter:
(1) `Applicant' means a person who is believed to have mental retardation, one or more related disabilities, one or more head injuries, one or more spinal cord injuries, or an infant at high risk of a developmental disability who has applied for services of the South Carolina Department of Disabilities and Special Needs.
(2) `Client' is a person who is determined by the Department of Disabilities and Special Needs to have mental retardation, a related disability, head injury, or spinal cord injury and is receiving services or is an infant at risk of having a developmental disability and is receiving services.
(3) `Commission' means the South Carolina Commission on Disabilities and Special Needs, the policy-making and governing body of the Department of Disabilities and Special Needs.
(4) `County disabilities and special needs boards' means the local public body administering, planning, coordinating, or providing services within a county or combination of counties for persons with mental retardation, related disabilities, head injuries, or spinal cord injuries and recognized by the department.
(5) `Day programs' are programs provided to persons with mental retardation, related disabilities, head injuries, or spinal cord injuries outside of their residences affording development, training, employment, or recreational opportunities as prescribed by the Department of Disabilities and Special Needs.
(6) `Department' means the South Carolina Department of Disabilities and Special Needs.
(7) `Director' means the South Carolina Director of the Department of Disabilities and Special Needs, the chief executive director appointed by the commission.
(8) `High risk infant' means a child less than thirty-six months of age whose genetic, medical, or environmental history is predictive of a substantially greater risk for a developmental disability than that for the general population.
(9) `Least restrictive environment' means the surrounding circumstances that provide as little intrusion and disruption from the normal pattern of living as possible.
(10) `Improvements' means the construction, reconstruction of buildings, and other permanent improvements for regional centers and other programs provided by the department directly or through contract with county boards of disabilities and special needs, including equipment and the cost of acquiring and improving lands for equipment.
(11) `Mental retardation' means significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested during the developmental period.
(12) `Disabilities and special needs services' are activities designed to achieve the results specified in an individual client's plan.
(13) `Obligations' means the obligations in the form of notes or bonds or contractual agreements issued or entered into by the commission pursuant to the authorization of this chapter and of Act 1377 of 1968 to provide funds with which to repay the proceeds of capital improvement bonds allocated by the State Budget and Control Board.
(14) `Regional residential center' is a twenty-four hour residential facility serving a multi-county area and designated by the department.
(15) `Related disability' is a severe, chronic condition found to be closely related to mental retardation or to require treatment similar to that required for persons with mental retardation and must meet the following conditions:
(a) It is attributable to cerebral palsy, epilepsy, autism, or any other condition other than mental illness found to be closely related to mental retardation because this condition results in impairment of general intellectual functioning or adaptive behavior similar to that of persons with mental retardation and requires treatment or services similar to those required for these persons.
(b) It is manifested before twenty-two years of age.
(c) It is likely to continue indefinitely.
(d) It results in substantial functional limitations in three or more of the following areas of major life activity: self-care, understanding and use of language, learning, mobility, self-direction, and capacity for independent living.
(16) `Residential programs' are services providing dwelling places to clients for an extended period of time with assistance for activities of daily living ranging from constant to intermittent supervision as required by the individual client's needs.
(17) `Revenues' or `its revenues' means revenue derived from paying clients at regional residential centers and community residences but does not include Medicaid, Medicare, or other federal funds received with the stipulation that they be used to provide services to clients.
(18) `State capital improvement bonds' means bonds issued pursuant to Act 1377 of 1968.
(19) `State board' shall mean the State Budget and Control Board as constituted pursuant to Chapter 11, Title 1.
Article 3
Organization and System for
Delivery of Services
Section 44-20-210. (A) There is created the South Carolina Commission on Disabilities and Special Needs. The commission consists of seven members. One member must be a resident of each congressional district and one must be from the State at large to be appointed by the Governor upon the advice and consent of the Senate. They shall serve for four years and until their successors are appointed and qualify. Members of the commission are subject to removal by the Governor pursuant to the provisions of Section 1-3-240. A vacancy may be filled by the Governor for the unexpired portion of the term.
(B) On July 1, 1993 the Commission on Mental Retardation becomes the Commission on Disabilities and Special Needs. The commissioners continue to serve until their terms expire and their successors are appointed and qualify.
Section 44-20-220. The commission shall determine the policy and promulgate regulations governing the operation of the department and the employment of professional staff and personnel. The members of the commission shall receive subsistence, mileage, and per diem as may be provided by law for members of state boards, committees, and commissions. The commission shall appoint and in its discretion remove a South Carolina Director of Disabilities and Special Needs who is the chief executive officer of the department. The commission may appoint advisory committees it considers necessary to assist in the effective conduct of its responsibilities. The commission may educate the public and state and local officials as to the need for the funding, development, and coordination of services for persons with mental retardation, related disabilities, head injuries, and spinal cord injuries and promote the best interest of persons with mental retardation, related disabilities, head injuries, and spinal cord injuries. The commission is authorized to promulgate regulations to carry out the provisions of this chapter and other laws related to mental retardation, related disabilities, head injuries, or spinal cord injuries. In promulgating these regulations, the commission must consult with the advisory committee of the division for which the regulations shall apply.
Section 44-20-225. The Governor shall appoint a seven-member consumer advisory board with the advice and consent of the Senate for each of the following divisions: the Mental Retardation Division, the Autism Division, and the Head and Spinal Cord Injury Division. One member must be a resident of each congressional district, and one must be from the State at large.
The membership of each advisory board must consist of persons with knowledge and expertise in the subject area of that division. In making such appointments, race, gender, and other demographic factors should be considered to ensure nondiscrimination, inclusion and representation to the greatest extent possible of all segments of the population of the State; however, consideration of these factors in making an appointment in no way creates a cause of action or basis for an employee grievance for a person appointed or for a person who fails to be appointed.
The members of the commission shall receive subsistence, mileage, and per diem as may be provided by law for members of state boards, committees, and commissions.
Terms of the members shall be for four years and until their successors are appointed and qualify, except that of the original appointees, two shall be appointed for a period of two years, two shall be appointed for a period of three years, and three shall be appointed for a period of four years.
Section 44-20-230. Subject to the supervision, direction, and control of the commission, the director shall administer the policies and regulations established by the commission. The director may appoint and in his discretion remove all other officers and employees of the department subject to the approval of the commission.
Section 44-20-240. There is created the South Carolina Department of Disabilities and Special Needs which has authority over all of the state's services and programs for the treatment and training of persons with mental retardation, related disabilities, head injuries, and spinal cord injuries. This authority does not include services delivered by other agencies of the State as prescribed by statute. The department must be comprised of a Mental Retardation Division, an Autism Division, and a Head and Spinal Cord Injuries Division. The department may be divided into additional divisions as may be determined by the director and approved and named by the commission. Responsibility for all autistic services is transferred from the Department of Mental Health to the Department of Disabilities and Special Needs.
Section 44-20-250. The department shall coordinate services and programs with other state and local agencies for persons with mental retardation, related disabilities, head injuries, and spinal cord injuries. The department may negotiate and contract with local agencies, county boards of disabilities and special needs, private organizations, and foundations in order to implement the planning and development of a full range of services and programs for persons with mental retardation, related disabilities, head injuries, and spinal cord injuries subject to law and the availability of fiscal resources. The department has the same right to be reimbursed for expenses in providing disabilities and special needs services through a contractual arrangement as it has to be reimbursed for expenses provided through direct departmental services. The department shall develop service standards for programs of the department and for programs for which the department may contract and shall review and evaluate these programs on a periodic basis.
Section 44-20-260. The department, with funds available for these purposes, may conduct research to determine the causes, proper treatment, and diagnosis of mental retardation, related disabilities, head injuries, and spinal cord injuries and may use facilities and personnel under its control and management for carrying out the research so long as the rights of the client are preserved and prior consent is obtained pursuant to Section 44-26-180.
Section 44-20-270. The department is designated as the state's mental retardation, related disabilities, head injuries, and spinal cord injuries authority for the purpose of administering federal funds allocated to South Carolina for mental retardation programs, related disability programs, head injury programs, and spinal cord injury programs. This authority does not include the functions and responsibilities granted to the South Carolina Department of Health and Environmental Control or to the South Carolina Department of Vocational Rehabilitation or the administration of the `State Hospital Construction and Franchising Act'.
Section 44-20-280. The department may negotiate and contract with an agency of the United States or a state or private agency to obtain grants to assist in the expansion and improvement of services to persons with mental retardation, related disabilities, head injuries, or spinal cord injuries and may expend the grants under the terms and conditions of the award.
Section 44-20-290. The director or his designee may employ at regional centers security guards who are vested and charged with the powers and the duties of peace officers. They may arrest felons and misdemeanants, eject trespassers, and, without warrant, arrest persons for disorderly conduct who are trespassers on the grounds of the regional center and have them tried in a court of competent jurisdiction. Officers so employed must be bonded and under the direct supervision of the South Carolina Law Enforcement Division and shall report directly to the director or his designee.
Section 44-20-300. The department may acquire motor vehicle liability insurance for employees operating department vehicles or private vehicles in connection with their official departmental duties to protect against liability.
Section 44-20-310. The department may sell timber from its forest lands with the proceeds from the sales to be deposited in the general fund of the State. Before a sale, the State Budget and Control Board shall consult with the State Forester to determine the economic feasibility of the sale, and a sale must not be made without the approval of the board.
Section 44-20-320. The department or any of its programs may accept gifts, bequests, devises, grants, and donations of money, real property, and personal property for use in expanding and improving services to persons with mental retardation, related disabilities, head injuries, and spinal cord injuries available to the people of this State. However, nothing may be accepted by the department with the understanding that it diminishes an obligation for paying care and maintenance charges or other monies due the department for services rendered. The commission may formulate policies and promulgate regulations governing the disposition of gifts, bequests, devises, grants, and donations. If they are given to a specific service program of the department they must remain and be used for that program only or to its successor program.
Section 44-20-330. The department may grant easements, permits, or rights-of-way on terms and conditions it considers to be in the best interest of the State, across, over, or under land held by the department for the construction of water, sewer, drainage, natural gas, telephone, telegraph, and electric power lines.
Section 44-20-340. (A) A person, hospital, or other organization may provide information, interviews, reports, statements, written memoranda, documents, or other data related to the condition and treatment of a client or applicant to the department, and no liability for damages or other relief arises against the person, hospital, or organization for providing the information or material.
(B) All records pertaining to the identity of a person whose condition or treatment has been studied by the department are confidential and privileged information. However, upon the written request of the client, the client's or applicant's parent with legal custody, legal guardian, or spouse with the written permission of the client or applicant or under subpoena by a court of law, the department may furnish pertinent records in its possession to appropriate parties.
Section 44-20-350. (A) Reasonable reimbursement to the State for its fiscal outlay on behalf of services rendered by the department or any other agency authorized by the department to offer services to clients is a just obligation of the person with mental retardation, a related disability, head injury, or spinal cord injury, his estate, or his parent or guardian under the conditions and terms provided in this section.
(B) The department or an agency authorized by the department to offer services to clients may charge for its services. However, no service may be denied a client or his parent or guardian because of inability to pay part or all of the department's or other agency's expenses in providing that service. Where federal reimbursement is authorized for services provided, the department initially shall seek federal reimbursement. No charge or combination of charges may exceed the actual cost of services rendered. The commission shall approve the procedures established to determine ability to pay and may authorize its designees to reduce or waive charges based upon its findings.
(C) Parents, guardians, or other responsible relatives must not be charged for regional center or community residential services provided by the department for their child or ward. However, a person receiving nonresidential services or his parent or guardian may be assessed a charge for services received, not to exceed cost. The department with the approval of the commission may determine for which services it charges.
(D) The department shall establish a hearing and review procedure so that a client or his parent or guardian may appeal charges made for services or may present to officials of the department information or evidence to be considered in establishing charges. The department may utilize legal procedures to collect lawful claims.
(E) The department may establish by regulation charges for other services it renders.
Section 44-20-360. (A) The physical boundaries of Midlands Center, Coastal Center, Pee Dee Center, and Whitten Center are designated as independent school districts. These facilities may elect to participate in the usual activities of the districts, to receive state and federal aid, and to utilize other benefits enjoyed by independent school districts in general.
(B) The commission operates as the board of trustees for these districts for administrative purposes, including the receipt and expenditure of funds granted to these districts for any purpose.
Section 44-20-370. (A) The department shall:
(1) notify applicants when they have qualified under the provisions of this chapter;
(2) establish standards of operation and service for county disabilities and special needs programs funded in part or in whole by state appropriations to the department or through other fiscal resources under its control;
(3) review service plans submitted by county boards of disabilities and special needs and determine priorities for funding plans or portions of the plans subject to available funds;
(4) review county programs covered in this chapter;
(5) offer consultation and direction to county boards;
(6) take other action not inconsistent with the law to promote a high quality of services to persons with mental retardation, related disabilities, head injuries, or spinal cord injuries and their families.
(B) The department shall seek to develop and utilize the most current and promising methods for the training of persons with mental retardation, related disabilities, head injuries, and spinal cord injuries. It shall utilize the assistance, services, and findings of other state and federal agencies. The department shall disseminate these methods to county boards and programs providing related services.
Section 44-20-375. (A) Before July 1, 1992, county boards of disabilities and special needs must be created within a county or within a combination of counties by ordinance of the governing bodies of the counties concerned. The ordinance must establish the number, terms, appointment, and removal of board members and provide for their powers and duties in compliance with state law and the process for appointing board members which existed on January 1, 1991, must be preserved in the ordinance. However, where the county legislative delegation or county council recommends board members to the appointing authority, the delegation may transfer its authority to recommend to the council or the council may transfer its authority to the delegation. If there is a transfer, preservation of the authority to recommend existing on January 1, 1991, is not required, and the new recommending authority must be contained in the ordinance.
(B) County boards of disabilities and special needs established before January 1, 1991, shall continue to exist, operate, and function as they existed on January 1, 1991, until created by ordinance pursuant to subsection (A).
(C) After June 30, 1992, the department shall recognize only county boards of disabilities and special needs that plan, administer, or provide services to persons with mental retardation, related disabilities, head injuries, spinal cord injuries within a county or combination of counties which are created or established pursuant to this section, including those whose members are appointed by the Governor. A county board of disabilities and special needs created by ordinance before January 1, 1991, is considered created pursuant to this section, provided the ordinance includes and complies with the provisions of subsection (A).
(D) A county board of disabilities and special needs is a public entity.
Section 44-20-378. A county board of disabilities and special needs established pursuant to Section 44-20-375 must consist of not less than five members. If the board is created within a combination of counties, the number of members representing each county must be proportional to the county's population in relation to the total population of the counties served by the board. However, a county participating in a multicounty board must not have less than two members. The term of the members is four years and until their successors are appointed and qualify. Vacancies for unexpired terms must be filled in the same manner as the original appointments. A member may be removed by the appointing authority for neglect of duty, misconduct, or malfeasance in office after being given a written statement of reasons and an opportunity to be heard.
Section 44-20-380. (A) County disabilities and special needs boards are encouraged to utilize lawful sources of funding to further the development of appropriate community services to meet the needs of persons with mental retardation, related disabilities, head injuries, or spinal cord injuries and their families.
(B) County boards may apply to the department for funds for community services development under the terms and conditions as may be prescribed by the department. The department shall review the applications and, subject to state appropriations to the department or to other funds under the department's control, may fund the programs it considers in the best interest of service delivery to the citizens of the State with mental retardation, related disabilities, head injuries, or spinal cord injuries.
(C) Subject to the approval of the department, county boards may seek state or federal funds administered by state agencies other than the department, funds from local governments or from private sources, or funds available from agencies of the federal government. The county boards may not apply directly to the General Assembly for funding or receive funds directly from the General Assembly.
Section 44-20-385. Subject to the provisions of this chapter and the regulations of the department each county disabilities and special needs board:
(1) is the administrative, planning, coordinating, and service delivery body for county disabilities and special needs services funded in whole or in part by state appropriations to the department or funded from other sources under the department's control. It is a body corporate in deed and in law with all the powers incident to corporation including the power to incur debt insofar as that debt is payable from contract, grant, or other revenues and is not the debt of the State or its other political subdivisions. A county board may purchase and hold real and mortgage property and erect and maintain buildings. The department shall approve all debt of a county board to be paid in whole or in part from contract, grant, or other revenues provided by the State. However, the department has no responsibility for the debt so approved;
(2) shall submit an annual plan and projected budget to the department for approval and consideration of funding;
(3) shall review and evaluate on at least an annual basis the county disabilities and special needs services provided pursuant to this chapter and report its findings and recommendations to the department;
(4) shall promote and accept local financial support for the county program from private and other lawful sources and promote public support from municipal and county sources;
(5) shall employ personnel and expend its budget for the direct delivery of services or contract with those service vendors necessary to carry out the county mental retardation, related disabilities, head injuries, and spinal cord injuries services program who meet specifications prescribed by the department;
(6) shall plan, arrange, implement, and monitor working agreements with other human service agencies, public and private, and with other educational and judicial agencies;
(7) shall provide the department records, reports, and access to its sponsored services and facilities the department may require and submit its sponsored services and facilities to licensing requirements of the department or to the licensing requirements of other state or local agencies having this legal authority;
(8) shall represent the best interest of persons with mental retardation, related disabilities, head injuries, or spinal cord injuries to the public, public officials, and other public or private organizations.
Section 44-20-390. (A) In order to provide assistance to families and individuals the department shall provide an initial intake and assessment service to a person believed to be in need of services and who makes application for them. An assessment must be provided through diagnostic centers approved by the department. If upon completion of the assessment the applicant is determined to have mental retardation, a related disability, head injury, or spinal cord injury and be in need of services, he may become a client of the department and eligible for services. A service plan must be designated for each person assessed. A person determined to have mental retardation, a related disability, head injury, or spinal cord injury and who chooses to become a client of the department, must be provided with the delivery or coordination of services by the department. A person determined not to have mental retardation, a related disability, head injury, or spinal cord injury may be provided by the department with referral and assistance in obtaining appropriate services or further evaluation.
(B) Service plans must recommend the services to assist the individual in developing to the fullest potential in the least restrictive environment available. The department shall determine the `least restrictive environment' and may contract with individuals or organizations for a reasonable sum as determined by the department to provide the services. The department shall review service plans of its clients at least periodically according to standards prescribing the frequency to ensure that appropriate services are being provided in the least restrictive environment available. The parents, the legal guardian, the client, and other appropriate parties must be included in the review. The department shall develop standards prescribing the service plan review.
(C) No individual believed to have mental retardation, a related disability, head injury, or spinal cord injury may be admitted to the services of the department until he has been examined at a diagnostic center of the department or a diagnostic center approved by the department and certified by the department on the basis of acceptable data to have mental retardation, a related disability, head injury, or spinal cord injury or unless he is an infant at risk of a developmental disability and in need of the department's services.
(D) The applicant shall meet residency requirements in at least one of the following categories:
(1) The applicant or his spouse, parent, with or without legal custody, or legal guardian is domiciled in South Carolina.
(2) The applicant or his spouse, parent, with or without legal custody, or legal guardian lives outside South Carolina but retains legal residency in this State and demonstrates to the department's satisfaction his intent to return to South Carolina.
(3) The applicant or his spouse or parent, with or without legal custody, or legal guardian is a legal resident of a state which is an active member of the Interstate Compact on Mental Health and qualifies for services under it.
Section 44-20-400. Upon the written request of the person, the person's parents, parent with legal custody, or lawful custodian or legal guardian and subject to the availability of suitable accommodations and services, a person with mental retardation, a related disability, head injury, or spinal cord injury may be admitted to the services of the department for evaluation and diagnosis and shall remain in the residential services of the department for that period required to complete the diagnostic study. However, this period may not exceed thirty days except upon approval of the director or his designee. Individuals admitted under the provisions of this section are subject to the same regulations and departmental policies as regular admissions. The department may prescribe the form of the written application for diagnostic services.
Section 44-20-410. A person who is determined to be eligible for services is subject to the following considerations regarding his order of admission to services and programs:
(1) relative need of the person for special training, supervision, treatment, or care;
(2) availability of services suitable to the needs of the applicant.
Section 44-20-420. The director or his designee may designate the service or program in which a client is placed. The appropriate services and programs must be determined by the evaluation and assessment of the needs, interests, and goals of the client.
Section 44-20-430. The director or his designee has the final authority over applicant eligibility, determination, or services and admission order, subject to policies adopted by the commission.
Section 44-20-440. Subject to the availability of suitable services and programs and subject to the provisions of `Requirement for Admission to Services', `Order in which Person May be Admitted', and `Final Authority over Eligibility', the director or his designee may admit a client to the services of the department upon the written request of the parents of the person with mental retardation, a related disability, head injury or spinal cord injury, a parent with legal custody, spouse, lawful custodian or legal guardian, or the person with mental retardation, a related disability, head injury, or spinal cord injury seeking to be admitted to the department's services if the person is twenty-one years of age or over and competent to make the decision. The department shall prescribe the form of the application for services.
Section 44-20-450. (A) Proceedings for the involuntary admission of a person with mental retardation or a related disability to the services of the department may be initiated by the filing of a verified petition with the Probate or the Family Court by the spouse, a relative, the parents, a parent with legal custody, or the legal guardian of the person, by the person in charge of a public or private institution in which the individual is residing at the time, or by the director of the county department of social services of the county in which the person resides. Upon filing of the petition, the judge shall set a date for a hearing on it and ensure that the client has an attorney who represents him. The parents, parent with legal custody, spouse, guardian, or nearest known relative of the person alleged to have mental retardation or a related disability and in whose behalf the petition has been made and in the discretion of the court, the individual alleged to have mental retardation or a related disability and the department must be served by the court with a written notice of the time and place of the hearing, together with a written statement of the matters stated in the petition. If no parent, spouse, legal guardian, or known relative of the person alleged to have mental retardation or a related disability is found, the court shall appoint a guardian ad litem to represent the person alleged to have mental retardation or a related disability, and the notice must be served upon the guardian. If the parent, spouse, guardian or known relative of the person alleged to have mental retardation or a related disability is found, he must be notified of the right to an attorney at the hearing.
(B) The hearing on the petition may be in the courthouse or at the place of residence of the person alleged to have mental retardation or a related disability or at another place considered appropriate by the court. The person alleged to have mental retardation or a related disability does not need to be present if the court determines that the hearing would be injurious or detrimental to the person alleged to have mental retardation or a related disability or if the person's mental or physical condition prevents his participation in the hearing. However, his attorney must be present.
(C) A report of the person in charge of the examination of the person alleged to have mental retardation or a related disability at the diagnostic center referred to in `Requirement for Admission' must be submitted to the court at the hearing. The court may not render judgment in the hearing unless this report is available and introduced.
(D) If the court determines that the evidence presented by the examiners at the diagnostic center, along with other evidence presented to the court, is to the effect that the person does not in fact have mental retardation or a related disability to an extent which would require commitment, it shall terminate the proceeding and dismiss the petition.
(E) If the person is found by the court to have mental retardation or a related disability and be in need of placement in a facility or service program of the department, the court shall order that he be admitted to the jurisdiction of the department as soon as necessary services are available and include in the order a summary of the evidence presented and order of the court.
(F) The department shall inform the court as soon after the date of the order as practical that suitable accommodations and services are available to meet the needs of the person with mental retardation or a related disability. Upon notification, the court shall direct the petitioner in these proceedings to transport the person with mental retardation or a related disability to a program the department designates.
(G) A party to these proceedings may appeal from the order of the court to the court of common pleas, and a trial de novo with a jury must be held in the same manner as in civil actions unless the petitioner through his attorney waives his right to a jury trial. Pending a final determination of the appeal, the person with mental retardation or a related disability must be placed in protective custody in either a facility of the department or in some other suitable place designated by the court. No person with mental retardation or a related disability must be confined in jail unless there is a criminal charge pending against him.
Section 44-20-460. (A) A person admitted or committed to the services of the department remains a client and is eligible for services until discharged. When the department determines that a client admitted to services is no longer in need of them, the director or his designee may discharge him. When the only basis of the department's provision of services to a client is that he is a person with mental retardation or a related disability and it is determined that he is no longer in that condition, the director or his designee shall discharge him as soon as practical. A client of the department who is receiving residential services may be released to his spouse, parent, guardian, or relative or another suitable person for a time and under conditions the director or his designee may prescribe.
(B) When a client voluntarily admitted requests discharge or the person upon whose application the client was admitted to the department's services requests discharge in writing, the client may be detained by the department for no more than ninety-six hours. However, if the condition of the person is considered by the director or his designee to be such that he cannot be discharged with safety to himself or with safety to the general public, the director or his designee may postpone the requested discharge for not more than fifteen days and cause to be filed an application for judicial admission. For the purpose of this section, the Probate Court or Family Court of the county in which the facility where the person with mental retardation or a related disability resides is located is the venue for judicial admission. Pending a final determination on the application, the court shall order the person with mental retardation or a related disability placed in protective custody in either a facility of the department or in some other suitable place designated by the court.
Section 44-20-470. (A) The department may return a nonresident person with mental retardation or a related disability admitted to a service or program in this State to the proper agency of the state of his residence.
(B) The department is authorized to enter into reciprocal agreements with the proper agencies of other states to facilitate the return to the state of their residence persons admitted or committed to services for persons with mental retardation or a related disability in this State or other states.
(C) The department may detain a person with mental retardation or a related disability returned to this State from the state of his commitment for not more than ninety-six hours pending order of the court in commitment proceedings in this State.
(D) The expense of returning persons with mental retardation or a related disability to other states must be paid by this State, and the expense of returning residents of this State with mental retardation or a related disability must be paid by the state making the return when interstate agreements to that effect have been negotiated.
Section 44-20-480. When the department determines that the welfare of a client would be facilitated by his placement out of the home, the client must be evaluated by the department, and the least restrictive level of care possible for the client must be recommended and provided when available. The department shall determine which levels of care are more restrictive and is responsible for providing a range of placements offering various levels of supervision. The department may pay an individual or organization furnishing residential alternatives to clients under this section a reasonable sum for services rendered, as determined by the department.
Section 44-20-490. (A) When the department determines that a client may benefit from being placed in an employment situation, the department shall regulate the terms and conditions of employment, shall supervise persons with mental retardation, a related disability, head injury, or spinal cord injury so employed, and may assist the client in the management of monies earned through employment to the end that the best interests of the client are served.
(B) The department may operate sheltered employment and training programs at its various facilities and in communities and may pay clients employed in these settings from earnings of the program or from other funds available for this purpose.
(C) Clients who receive job training and employment services from the department must be compensated in accordance with applicable state and federal laws and regulations.
Section 44-20-500. When a client is absent from a facility or program and there is probable cause the client may be in danger, the director or his designee may issue an order of confinement for the client. This order, when endorsed by the judge of the probate, family, or Circuit Court of the county in which the client is present or residing, authorizes a peace officer to take the client into custody for not more than twenty-four hours and to return him or cause him to be returned to the place designated by the director or his designee.
Section 44-20-510 .Placement of a person with mental retardation, a related disability, head injury, or spinal cord injury in a program of the department does not preclude his attendance in community-based public school classes when the individual qualifies for the classes.
Article 5
Licensure and Regulation of
Facilities and Programs
Section 44-20-710. No day program in part or in full for the care, training, or treatment of a person with mental retardation, a related disability, head injury, or spinal cord injury may deliver services unless a license first is obtained from the department. For the purpose of this article `in part' means a program operating for ten hours a week or more. Educational and training services offered under the sponsorship and direction of school districts and other state agencies are not required to be licensed under this article.
Section 44-20-720. The department shall establish minimum standards of operation and license programs provided for in `Facilities and Programs must be Licensed'.
Section 44-20-730. In determining whether a license may be issued the department shall consider if the program for which the license is applied conforms with the local and state service plans and if the proposed location conforms to use.
Section 44-20-740. No day program may accept a person who has mental retardation, a related disability, head injury, or spinal cord injury for services other than those for which it is licensed. No program may serve more than the number of clients as provided on the license. An applicant for a license shall file an application with the department in a form and under conditions the department may prescribe. The license must be issued for up to three years unless sooner suspended, revoked, or surrendered. The license is not transferable and must not be assigned.
Section 44-20-750. The department shall make day program inspections as it may prescribe by regulation. The day programs subject to this article may be visited and inspected by the director or his designees no less than annually and before the issuance of a license. Upon request, each program shall file with the department a copy of its bylaws, regulations, and rates of charges. The records of each licensed program are open to the inspection of the director or his designees.
Section 44-20-760. Information received by the department through licensing inspections or as otherwise authorized may be disclosed publicly upon written request to the department. The reports may not identify individuals receiving services from the department.
Section 44-20-770. The department shall deny, suspend, or revoke a license on any of the following grounds:
(1) failure to establish or maintain proper standards of care and service as prescribed by the department;
(2) conduct or practices detrimental to the health or safety of residents or employees of the day program. This item does not apply to healing practices authorized by law;
(3) violation of the provisions of this article or regulations promulgated under it.
Section 44-20-780. (A) The department shall give written notification to the governing board or if none, the operator of a program of deficiencies, and the applicant or licensee must be given a specified time in which to correct the deficiencies. If the department determines to deny, suspend, or revoke a license, it shall send to the applicant or licensee by certified mail a notice setting forth the reason for the determination. The denial, suspension, or revocation becomes final fifteen calendar days after the mailing of the notice, unless the applicant or licensee within that time gives written notice of his desire for a hearing. If the applicant or licensee gives that notice, he must be given a hearing before the department and may present evidence. On the basis of the evidence, the determination must be affirmed or set aside by the director, and a copy of the decision, setting forth the findings of fact and the reasons upon which it is based must be sent by registered mail to the applicant.
(B) If an existing program has conditions or practices which, in the department's judgment, provide an immediate threat to the safety and welfare of the person with mental retardation, a related disability, head injury, or spinal cord injury served, the department may immediately suspend or revoke the license of the program. Notification of the program board or operator by certified mail of the license suspension or revocation also must include the reasons or conditions. A person operating a program which has had its license suspended or revoked must be punished as provided in `Injunctions; Penalties'.
Section 44-20-790. The procedures governing hearings authorized by `Notice of Deficiencies . . .' must be in accordance with regulations promulgated by the department. The director may appoint a review team, including consumers, to assist in the collection of information pertinent to the hearing.
Section 44-20-800. An applicant or licensee who is dissatisfied with the decision of the department as a result of the hearing provided for by `Procedures Governing Disciplinary Hearings . . .' may appeal to a South Carolina administrative law judge as provided in Article 5 of Chapter 23 of Title 1.
Section 44-20-900. (A) The department, in accordance with the laws of the State governing injunctions and other processes, may maintain an action in the name of the State against a person for establishing, conducting, managing, or operating a day program for the care, training, and treatment of a person with mental retardation, a related disability, head injury, or spinal cord injury without obtaining a license as provided in this article. In charging a defendant in a complaint in the action, it is sufficient to charge that the defendant, upon a certain day and in a certain county, provided day program services without a license, without averring more particular facts concerning the charge.
(B) A person violating the provisions of this article is guilty of a misdemeanor and, upon conviction, must be fined not more than one thousand dollars for a first offense and two thousand dollars for a subsequent offense. Each day the day program operates after a first conviction is considered a subsequent offense.
Section 44-20-1000. Licensing by the department must be done in conjunction with and not in place of licensing by an agency having responsibilities outside the department's jurisdiction. However, nothing in this section prevents the department from entering into cooperative agreements or contracts with an agency which has or may have licensing responsibilities in order to accomplish the licensing of programs.
Article 7
Capital Improvements for
Mental Retardation
Section 44-20-1110. The department has authority for all of the state's disabilities and special needs services and programs.
Section 44-20-1120. The commission may raise monies for the construction of improvements under the terms and conditions of this article.
Section 44-20-1130. The aggregate of the outstanding principal amounts of state capital improvement bonds issued for the commission may not exceed twenty million dollars.
Section 44-20-1140. If the commission determines that improvements are required for a residential regional center or community facility, it may make application for them to the State Budget and Control Board. The application must contain:
(1) a description of the improvements sought and their estimated cost;
(2) the number of paying clients receiving services from the department, the amount of fees received from the clients during the preceding fiscal year, and the estimated amount to be received from them during the next succeeding fiscal year;
(3) the revenues derived from the paying clients during the preceding three fiscal years;
(4) a suggested maturity schedule, which may not exceed twenty years, for the repayment of monies to be made available to the commission for state capital improvement bonds;
(5) a statement showing the debt service requirements of other outstanding obligations.
Section 44-20-1150. The State Budget and Control Board may approve, in whole or in part, or may modify an application received from the commission. If it finds that a need for the improvements sought by the commission exists, it may contract to make available to the commission funds to be realized from the sale of state capital improvements bonds if it finds that the revenues for the preceding fiscal year, if multiplied by the number of years, which may not exceed twenty, contemplated by the suggested or revised maturity schedule for the repayment of the monies to be made available to the commission, result in the production of a sum equal to not less than one hundred twenty-five percent of the aggregate principal and interest requirement of all outstanding obligations and all obligations to be incurred by the commission.
Section 44-20-1160. Upon receiving the approval of the State Budget and Control Board the commission shall obligate itself to apply all monies derived from its revenues to the payment of the principal and interest of its outstanding obligations and those to be issued and to deliver to the board its obligations.
Section 44-20-1170. (A) Following the execution and delivery of its obligations, the commission shall remit to the State Treasurer all its revenues, including accumulated revenues not applicable to prior obligations, for credit to a special fund. The special fund must be applied to meet the sums due by the commission under its obligations. These monies from the special fund must be applied by the State Treasurer to the payment of the principal of and interest on outstanding state capital improvement bonds.
(B) If the accumulation of revenues of the commission in the special fund exceeds the payment due or to become due during the then current fiscal year, and an additional sum equal to the maximum annual debt service requirement of the obligations for a succeeding fiscal year, the State Budget and Control Board may permit the commission to withdraw the excess and apply it to improvements that have received the approval of the board."
Definitions revised
SECTION 1079. Section 44-22-10(1) and (2) of the 1976 Code are amended to read:
"(1) Reserved.
(2) `Director' means the Director of the Department of Mental Health."
Commission changed to department; name revised
SECTION 1080. Section 44-22-50(B) of the 1976 Code is amended to read:
"(B) Persons who operate facilities of the department shall ensure that restrictions on a residential patient's liberty are confined to those minimally necessary to establish the therapeutic objectives for the patient. The department and the Department of Alcohol and Other Drug Abuse Services shall make every effort to ensure that no patient is admitted to a facility unless a prior determination has been made that residence in the facility is the least restrictive setting feasible for the patient."
Commission changed to department; name revised
SECTION 1081. Section 44-22-100(A)(3) of the 1976 Code is amended to read:
"(3) disclosure is required for research conducted or authorized by the department or the Department of Alcohol and Other Drug Abuse Services and with the consent of the patient;"
Commissioner changed to director; name revised
SECTION 1082. Section 44-22-110(C) of the 1976 Code is amended to read:
"(C) Patients and guardians denied access to medical records may appeal the refusal to the Director of the Department of Mental Health. The director of the residential program shall notify the patient or guardian of the right to appeal."
Definitions revised
SECTION 1083. Section 44-23-10(9) and (25) of the 1976 Code are amended to read:
"(9) `Director' means the Director of the Department of Mental Health;
(25) `Mentally retarded person' means any person, other than a mentally ill person primarily in need of mental health services, whose inadequately developed or impaired intelligence and adaptive level of behavior require for his benefit, or that of the public, special training, education, supervision, treatment, care or control in his home or community or in a service facility or program under the control and management of the Department of Disabilities and Special Needs;"
Department name revised
SECTION 1084. Section 44-23-210(2) and (3) of the 1976 Code are amended to read:
"(2) The superintendent of a state correctional institution applies to have a person serving a sentence transferred to the portion of a state correctional institution designated as a facility of the Department of Mental Health or of the Department of Disabilities and Special Needs. Such application shall be filed with the Probate Court of the county in which the correctional institution is located. Proceedings shall be commenced pursuant to Sections 44-17-510 through 44-17-610 or Section 44-21-90.
(3) Prior to the expiration of a sentence of any person who is imprisoned in any portion of a state correctional institution designated as a facility of the Department of Mental Health or the Department of Disabilities and Special Needs, the superintendent of the correctional institution believes that such person is mentally ill and there is a likelihood of serious harm to himself or others if returned to society, he shall commence proceedings in the Probate Court of the county where the person was last sentenced, pursuant to Sections 44-17-510 through 44-17-610 or Section 44-21-90."
Department name revised
SECTION 1085. Section 44-23-220 of the 1976 Code is amended to read:
"Section 44-23-220. No person who is mentally ill or mentally retarded shall be confined for safekeeping in any jail. If it appears to the officer in charge of the jail that such a person is in prison, he shall immediately cause the person to be examined by two examiners designated by the Department of Mental Health or the Department of Disabilities and Special Needs or both, and if in their opinion admission to a mental health or retardation facility is warranted, the officer in charge of the jail shall commence proceedings pursuant to Sections 44-17-510 through 44-17-610, or Section 44-21-90. If hospitalization is ordered the person shall be discharged from the custody of the officer in charge of the jail and shall be admitted to an appropriate mental health or retardation facility."
Department name revised; "related disability" included
SECTION 1086. Section 44-23-410 of the 1976 Code is amended to read:
"Section 44-23-410. Whenever a judge of the Circuit Court or Family Court has reason to believe that a person on trial before him, charged with the commission of a criminal offense or civil contempt, is not fit to stand trial because the person lacks the capacity to understand the proceedings against him or to assist in his own defense as a result of a lack of mental capacity, the judge shall:
(1) order examination of the person by two examiners designated by the Department of Mental Health if the person is suspected of having a mental illness or designated by the Department of Disabilities and Special Needs if the person is suspected of being mentally retarded or having a related disability or by both sets of examiners if the person is suspected of having both mental illness and mental retardation or a related disability; the examination must be made within fifteen days after the receipt of the court's order and may be conducted in any suitable place unless otherwise designated by the court; or
(2) order the person committed for examination and observation to an appropriate facility of the Department of Mental Health or the Department of Disabilities and Special Needs for a period not to exceed fifteen days. If at the end of fifteen days the examiners have been unable to determine whether the person is fit to stand trial, the director of the facility shall request in writing an additional period for observation not to exceed fifteen days. If the person or his counsel requests, the person may be examined additionally by a designated examiner of his choice. The report of the examination is admissible as evidence in subsequent hearings pursuant to Section 44-23-430. However, the court may prescribe the time and conditions under which the independent examination is conducted. If the examiners designated by the Department of Mental Health find indications of mental retardation or a related disability but not mental illness, the department shall not render an evaluation on the person's mental capacity, but shall inform the court that the person is `not mentally ill' and recommend that the person should be evaluated for competency to stand trial by the Department of Disabilities and Special Needs. If the examiners designated by the Department of Disabilities and Special Needs find indications of mental illness but not mental retardation or a related disability, the department shall not render an evaluation on the person's mental capacity, but shall inform the court that the person does `not have mental retardation or a related disability' and recommend that the person should be evaluated for competency to stand trial by the Department of Mental Health. If either the Department of Mental Health or the Department of Disabilities and Special Needs finds a preliminary indication of a dual diagnosis of mental illness and mental retardation or a related disability, this preliminary finding must be reported to the court with the recommendation that one examiner from the Department of Mental Health and one examiner from the Department of Disabilities and Special Needs be designated to further evaluate the person and render a final report on his mental capacity."
Commissioners changed to directors; department name revised
SECTION 1087. Section 44-25-30 of the 1976 Code is amended to read:
"Section 44-25-30. Pursuant to the compact, the State Directors of the Departments of Mental Health and Disabilities and Special Needs shall be the compact administrators for the mentally ill and the mentally retarded, or those with a related disability, respectively, and, acting jointly with like officers of other party states, shall have power to promulgate rules and regulations to carry out more effectively the terms of the compact. The compact administrators shall cooperate with all departments, agencies and officers of and in the government of this State and its subdivisions in facilitating the proper administration of the compact and any supplementary agreement or agreements entered into by this State and thereunder."
Department name revised; commissioner changed to director
SECTION 1088. Section 44-26-10 (2), (4), and (6) of the 1976 Code are amended to read:
"(2) `Client' means a person who is determined by the South Carolina Department of Disabilities and Special Needs to have mental retardation or a related disability and is receiving services or is an infant at risk of having mental retardation or a related disability and is receiving services.
(4) `Director' means the South Carolina Director of Disabilities and Special Needs.
(6) `Department' means the South Carolina Department of Disabilities and Special Needs."
Commissioner changed to director
SECTION 1089. Section 44-26-70 of the 1976 Code is amended to read:
"Section 44-26-70. (A) Human rights committees must be established for each regional center and for each county/multi-county program to:
(1) review and advise the regional center or the county/multi-county board on the policies pertaining to clients' rights policies;
(2) hear and make recommendations to the regional center or county/multi-county board on research proposals which involve individuals receiving services as research participants pursuant to Section 44-20-260;
(3) review and advise the regional center or county/multi-county board on program plans for behavior management which may restrict personal freedoms or rights of clients;
(4) advise the regional center or county/multi-county board on plans for behavior support which may restrict personal freedoms or rights of clients;
(5) advise the regional center or county/multi-county board on other matters as requested pertaining to the rights of clients.
(B) Human rights committees must be appointed by the director or his designee. Each committee consists of not less than the following five persons, except employees or former employees of the regional center or county/multi-county board must not be appointed:
(1) a family member of a person with mental retardation or a related disability;
(2) a client of the department, if appropriate;
(3) a representative of the community at large with expertise or a demonstrated interest in the care and treatment of persons with mental retardation or related disabilities.
(C) The department shall establish policy and procedures for the operations of the committees.
(D) Members of the committees serve in an advisory capacity only and are exempt from liability."
Commissioner changed to director
SECTION 1090. Section 44-26-80 of the 1976 Code is amended to read:
"Section 44-26-80. A client or his representative has the right to appeal decisions concerning the services or treatment provided by the department, county/multi-county board, or contracted service provider. A human rights committee established in Section 44-26-70 shall review and advise on grievances concerning applicants or clients receiving services. The department shall establish policies and procedures for the review of grievances and the appeal of decisions. The director has final authority."
Commissioner changed to director
SECTION 1091. Section 44-26-120 of the 1976 Code is amended to read:
"Section 44-26-120. (A) A client or his representative with the appropriate permission may have reasonable access to the client's medical and habilitative records. The requests must be made in writing.
(B) A client or his representative may be refused access to information in the medical and habilitative records if:
(1) provided by a third party under assurance that the information remains confidential;
(2) the attending physician has determined in writing that the information would be detrimental to the client's habilitation regimen. The determination must be placed in the client's records and is considered part of restricted information.
(C) A client or his representative refused access to medical or habilitative records may appeal the refusal to the department director. The director of the residential program shall notify the client or his representative of the right to appeal.
(D) Persons granted access to client records shall sign a disclosure form. Disclosure forms are considered part of a client's confidential record."
Commissioner changed to director
SECTION 1092. Section 44-26-170 of the 1976 Code is amended to read:
"Section 44-26-170. (A) Behavior modification programs involving the use of aversive stimuli are discouraged and may be used only in extraordinary cases where all other efforts have proven ineffective. Clients must not be subjected to aversive stimuli in the absence of:
(1) prior written approval for the technique by the director;
(2) the informed consent of the client on whom the aversive stimuli is to be used or his representative. Each use of aversive stimuli and justification for it must be entered into the client's record;
(3) documentation of less restrictive methods that have failed must be entered into the client's record.
(B) Seclusion must not be used on mentally retarded clients.
(C) Planned exclusionary time-out procedures may be utilized under close and direct professional supervision as a technique in behavior shaping.
(D) Behavior modification plans must be reviewed by the interdisciplinary team periodically for continued appropriateness."
Department name revised
SECTION 1093. Section 44-28-20 of the 1976 Code is amended to read:
"Section 44-28-20. For the purpose of this chapter `a self-sufficiency trust' means a trust created by a nonprofit corporation exempt from federal income taxes pursuant to Section 501(c)(3) of the Internal Revenue Code of 1986 and organized for purposes of providing care or treatment of one or more developmentally disabled, mentally ill, or physically handicapped persons eligible for services of the South Carolina Department of Disabilities and Special Needs, State Department of Mental Health, or the State Agency of Vocational Rehabilitation."
Department name revised
SECTION 1094. Section 44-28-40 of the 1976 Code is amended to read:
"Section 44-28-40. (A) The South Carolina Department of Disabilities and Special Needs, State Department of Mental Health, or the State Agency of Vocational Rehabilitation must provide care or treatment for a beneficiary from monies available from the beneficiary's account maintained in the Self-Sufficiency Trust Fund.
(B) Upon proper certification by the South Carolina Department of Disabilities and Special Needs, the State Department of Mental Health, or the State Agency of Vocational Rehabilitation, the State Treasurer shall process vouchers from the Self-Sufficiency Trust Fund accounts for services provided pursuant to this section."
Department name revised
SECTION 1095. Section 44-28-60 of the 1976 Code is amended to read:
"Section 44-28-60. If the State Treasurer after consultation with the South Carolina Department of Disabilities and Special Needs, the State Department of Mental Health, or the State Agency of Vocational Rehabilitation determines that the money in the account of a named beneficiary cannot be used for supplemental care or treatment of the beneficiary in a manner consistent with the agreement or upon request of the trustee of the self-sufficiency trust, the remaining money in the account and any accumulated interest promptly must be returned to the self-sufficiency trust which deposited the money in the Self-Sufficiency Trust Fund."
Department name revised
SECTION 1096. Section 44-28-80 of the 1976 Code is amended to read:
"Section 44-28-80. The South Carolina Department of Disabilities and Special Needs, the State Department of Mental Health, and the State Agency of Vocational Rehabilitation shall promulgate regulations necessary for the implementation and administration of the Self-Sufficiency Trust Fund."
Department name revised
SECTION 1097. Section 44-28-360 of the 1976 Code is amended to read:
"Section 44-28-360. The South Carolina Department of Disabilities and Special Needs, State Department of Mental Health, or State Agency of Vocational Rehabilitation must provide care or treatment for the beneficiary from monies available from the Disability Trust Fund. These agencies are responsible only for the beneficiaries that meet their individual eligibility criteria."
Department name revised
SECTION 1098. Section 44-28-370 of the 1976 Code is amended to read:
"Section 44-28-370. The South Carolina Department of Disabilities and Special Needs, the State Department of Mental Health, and the State Department of Vocational Rehabilitation shall promulgate regulations necessary for the implementation and administration of the Disability Trust Fund."
Commissioner changed to director
SECTION 1099. Section 44-29-210 of the 1976 Code is amended to read:
"Section 44-29-210. (a) Whenever the Board of the Department of Health and Environmental Control or the Director of the Department of Health and Environmental Control approves in writing a mass immunization project to be administered in any part of this State in cooperation with an official or volunteer medical or health agency, any authorized employee of the agency, any physician who does not receive compensation for his services in the project, and any registered nurse who participates in the project, except as provided in subsection (b), is not liable to any person for illness, reaction, or adverse effect arising from or out of the use of any drug or vaccine administered in the project by the employee, physician, or nurse. Neither the board nor the director may approve the project unless either finds that the project conforms to good medical and public health practice. For purposes of this section, a person is considered to be an authorized employee of an official or volunteer medical or health agency if he has received the necessary training for and approval of the Director of the Bureau of Preventive Health Services of the department for participation in the project.
(b) Nothing in this section exempts any physician, registered nurse, or authorized public health employee participating in any mass immunization project from liability for gross negligence nor do the provisions of this section exempt any drug manufacturer from any liability for any drug or vaccine used in the project."
Commissioner changed to director
SECTION 1100. Section 44-30-10 and 44-30-20 of the 1976 Code are amended to read:
"Section 44-30-10. This chapter may be cited as the `South Carolina Health Care Professional Compliance Act'.
Section 44-30-20. As used in this chapter:
(1) `CDC' means the Centers for Disease Control of the Public Health Service.
(2) `CDC recommendations' means the July 12, 1991, CDC document (MMWR, Volume 40, No. RR-8) entitled `Recommendations for Preventing Transmission of Human Immunodeficiency Virus and Hepatitis B Virus to Patients During Exposure-Prone Invasive Procedures' or equivalent guidelines developed by the department and approved by the CDC and any appropriate supplements or revisions thereto.
(3) `Department' means the South Carolina Department of Health and Environmental Control.
(4) `Educational institutions' means the health professional schools of dentistry, medicine, and nursing and any other educational program or institution providing training for health care professionals.
(5) `Expert review panel' means a panel of experts in composition and function as defined in the CDC recommendations and appointed or approved by the department.
(6) `Health care professional' means a physician, physician's assistant, dentist, dental hygienist, registered nurse, licensed practical nurse, or podiatrist practicing or licensed to practice in South Carolina.
(7) `Licensing board' means these health professional licensing boards which are state agencies and which license and regulate specific health care professions: the State Board of Medical Examiners, the State Board of Nursing for South Carolina, the South Carolina State Board of Dentistry, and the State Board of Podiatry Examiners.
(8) `Public law' means Public Law 102-141, Section 633, enacted October 28, 1991, applicable to health care professionals.
(9) `State public health official' means the director of the department or the director's designee."
Commissioner changed to director; department name revised
SECTION 1101. Section 44-36-20 of the 1976 Code is amended to read:
"Section 44-36-20. The School of Public Health shall appoint an advisory committee to assist in maintaining this registry which must include, but is not limited to, the Directors of the Department of Mental Health and the Department of Disabilities and Special Needs or their designees and one representative of each of the following groups: practicing physicians treating patients with Alzheimer's disease and related disorders, clinical psychologists evaluating and treating patients with Alzheimer's disease and related disorders, neuropathologists, researchers engaged in clinical investigations related to dementias, basic science researchers engaged in studies related to dementias, nursing home administrators, the Medical University of South Carolina, and the University of South Carolina Medical School. The advisory committee shall assist the School of Public Health in developing protocols, choosing necessary psychometric validation instruments, and other technical mechanisms."
Head and Spinal Cord Injury Division established; commissioners changed to directors; department names revised
SECTION 1102. Section 44-38-30 of the 1976 Code is amended to read:
"Section 44-38-30. (A) There is the South Carolina Head and Spinal Cord Injury Information System Council established for the purpose of overseeing the daily activities of the system which shall be under the Head and Spinal Cord Injury Division of the Department of Disabilities and Special Needs. The council is composed of the following ex officio members or their designees: the chairman, Developmental Disabilities Council, Office of the Governor, the chairman of the Joint Committee to Study the Problems of Persons with Disabilities, the State Director of the State Department of Mental Health, the Commissioner of the Department of Vocational Rehabilitation, the Director of the State Department of Disabilities and Special Needs, the Director of the South Carolina Department of Health and Environmental Control, the Director of the South Carolina Department of Health and Human Services, Dean of the University of South Carolina School of Medicine, the Dean of the Medical University of South Carolina, the Executive Director of the South Carolina Hospital Association, one representative from each of the head injury advocacy organizations, and one individual with a spinal cord injury. The council shall elect a chairman who may appoint such other nonvoting members who may serve in an advisory capacity to the council, including representatives from the private service delivery sector.
(B) Members of the council shall receive no compensation, including subsistence, per diem, or mileage for service on the council."
Provisions revised for the Head and Spinal Cord Injury Service Delivery System; appropriate departments and directors revised
SECTION 1103. Chapter 38, Title 44 of the 1976 Code, as last amended by Act 159 of 1993, is further amended to read:
"Article 3
Head and Spinal Cord Injury
Service Delivery System
Section 44-38-310. There is established within the Department of Disabilities and Special Needs the South Carolina Head and Spinal Cord Injury Service Delivery System. The system shall operate as a division of the department to be known as the Head and Spinal Cord Injury Division. The department must develop, coordinate, and enhance the delivery of services to persons with head and spinal cord injuries. The department must coordinate case management services provided pursuant to this article with the Department of Vocational Rehabilitation. Services provided pursuant to this article supplement and do not supplant existing services or the development of new services.
Section 44-38-320. As used in this article:
(1) `System' means the South Carolina Head and Spinal Cord Injury Service Delivery System as established in this article;
(2) `State plan' means the plan developed by the State Department of Disabilities and Special Needs pursuant to this article for a comprehensive system of services for persons with head and spinal cord injuries.
(3) `Department' means the Department of Disabilities and Special Needs.
Section 44-38-330. The primary functions of the system are planning, intake and referral, case management, and education and prevention. The department is responsible for these functions.
Section 44-38-340. The department shall:
(1) develop a state plan for a comprehensive system of services for persons with head and spinal cord injuries, including short-term and long-term goals and objectives for implementing the plan;
(2) receive surveillance data from the South Carolina Head and Spinal Cord Injury Information System to use in developing and revising the state plan to meet the changing needs of this population;
(3) identify gaps in services for head and spinal cord injured persons and spearhead development of those services needed for the comprehensive system of service delivery;
(4) develop licensing, program, and contract guidelines to be used by case managers in working with service delivery agencies;
(5) in conjunction with other state agencies, prepare, coordinate, and advocate for state appropriations needed to fund and to develop services needed to implement the state plan;
(6) seek funding from other sources, private and federal, including, but not limited to, medicaid waivers and expansion of the medicaid program, to provide services outlined in the state plan;
(7) evaluate the state plan including, but not limited to, how well head and spinal cord injured persons are identified, referred, and served by the system and its impact on their quality of life, including reintegration and productivity in the community;
(8) promote public awareness through programs relating to head and spinal cord injury prevention, treatment, and rehabilitation;
(9) promote research on the causes, effects, prevention, treatment, and rehabilitation of head and spinal cord injuries.
(10) serve as the central and initial point for receiving referrals for case management services from the South Carolina Head and Spinal Cord Injury Information System and all other sources;
(11) determine a person's eligibility for case management services based on criteria provided in Section 44-38-370, conduct an assessment of services needed, and provide appropriate case management based on an individualized treatment plan designed to meet the specific needs of the person;
(12) develop policies and procedures to be used by the case managers to ensure, among other things, that a person with a head or spinal cord injury receives equal access to available services and that case management services maximize the person's self-determination and self-advocacy;
(13) develop training programs for case managers and other professionals to prepare and assist them in working with persons with head and spinal cord injuries;
(14) coordinate the delivery of services and ensure that services are appropriate and delivered in a timely manner;
(15) advocate for persons with head and spinal cord injuries to assist them in receiving equal access to services and services which promote independence and productivity.
Section 44-38-370. A person is eligible for case management services under this article when at the time of determining eligibility the person has a severe chronic limitation that:
(1) is attributed to a physical impairment, including head injury, spinal cord injury, or both, or a similar disability, regardless of the age of onset but not associated with the process of a progressive degenerative illness or disease, dementia, or a neurological disorder related to aging;
(2) is likely to continue indefinitely without intervention;
(3) results in substantial functional limitations in at least two of these life activities:
(a) self-care;
(b) receptive and expressive communication;
(c) learning;
(d) mobility;
(e) self-direction;
(f) capacity for independent living;
(g) economic self-sufficiency; and
(4) reflects the person's need for a combination and sequence of special interdisciplinary or generic care or treatment or other services which are of lifelong or extended duration and are individually planned and coordinated.
Section 44-38-380. (A) There is created an Advisory Council to the South Carolina Head and Spinal Cord Service Delivery System composed of:
(1) the following members or a designee, who shall serve ex officio:
(a) Chairperson for the Joint Legislative Committee for the Disabled;
(b) Director of the State Department of Disabilities and Special Needs;
(c) Commissioner of the State Agency for Vocational Rehabilitation;
(d) Director of the University Affiliated Program of the University of South Carolina;
(e) Director of the South Carolina Developmental Disabilities Council;
(f) Director of Special Education of the State Department of Education;
(g) Director of the Interagency Office of Disability Prevention;
(h) Director of the Continuum of Care for Emotionally Disturbed Children Division of the Governor's Office;
(i) Executive Director of the South Carolina Health and Human Services Finance Commission;
(j) Director of the State Department of Mental Health;
(k) Commissioner of the South Carolina Department of Health and Environmental Control;
(l) Commissioner of the South Carolina Commission for the Blind;
(2) the following members or a designee:
(a) President of the South Carolina Head Injury Association;
(b) President of the South Carolina Association of Independent Head Injury Groups;
(c) President of the South Carolina Spinal Cord Injury Association;
(d) Director of the South Carolina Disabilities Research Commission;
(3) the following members to be appointed by the Governor for four-year terms and until their successors are appointed and qualified:
(a) three health care providers knowledgeable in head injuries and spinal cord injuries;
(b) three consumers of case management services or family members or legal guardians of consumers of case management services.
(c) of those members first appointed, two of the health care providers and two of the consumers or family members of consumers shall serve four-year terms and one health care provider and one consumer or family member of a consumer shall serve two-year terms.
(B) The Governor, with recommendation from the Chairperson of the Joint Legislative Committee for the Disabled, shall appoint a primary or secondary consumer of services of the system as chairperson of the council for a two-year term; no person may serve more than one term as chairperson.
(C) Members of the Advisory Council shall serve at no expense to the State.
(D) The Advisory Council shall work with the State Department of Disabilities and Special Needs and the State Agency of Vocational Rehabilitation in carrying out their responsibilities under this article. In working with these agencies the council shall, but is not limited to:
(1) provide oversight for the implementation of the state plan and operation of the system;
(2) review budget matters related to the system and the responsibilities of the agencies within the system;
(3) monitor effectiveness of the state plan.
Section 44-38-390. Nothing contained in this article may be construed to establish or authorize creation of an entitlement program or benefit."
Department of Veterans Affairs made division of the Governor's Office
SECTION 1104. Section 44-40-30 of the 1976 Code is amended to read:
"Section 44-40-30. There is created the South Carolina Agent Orange Advisory Council to assist and advise the South Carolina Department of Health and Environmental Control in its duties and functions as provided in this chapter and to assist and advise the Veterans Affairs Division of the Governor's Office in its duties and functions as provided in Section 25-11-70. The council is composed of five voting members and five nonvoting ex officio members. The voting members must be veterans who served in Vietnam, Cambodia, Laos, or Thailand. Voting members are appointed by the Governor for terms of four years and until their successors are appointed and qualify. The Governor shall designate a chairman who shall serve for a term of two years. Vacancies on the council are filled by appointment in the same manner as the original appointment for the remainder of the unexpired term. Voting members of the council are paid the usual per diem, mileage, and subsistence as provided by law for members of boards, commissions, and committees. The following shall serve as ex officio members without voting rights:
(1) the Director of the Department of Health and Environmental Control;
(2) the Director of Veterans Affairs' Division or his designee;
(3) one faculty member of the Medical University of South Carolina with expertise in a field relevant to the purpose of the council;
(4) one faculty member of the University of South Carolina with expertise in a field relevant to the purpose of the council."
Department name changed
SECTION 1105. Section 44-43-30 of the 1976 Code is amended to read:
"Section 44-43-30. Whenever any person applies for the issuance, reissuance or renewal of any class of driver's license, the Department of Revenue and Taxation is authorized to furnish that person with a form, sufficient under the provisions of the Uniform Anatomical Gift Act (Article 5 of this chapter), for the gift of all or part of the donor's body conditioned upon the donor's death and a document containing a summary description and explanation of such act. If any such person who is legally authorized desires to execute such a gift, the department may provide that person with appropriate assistance and the presence of the legally required number of witnesses."
Department name changed
SECTION 1106. Section 44-43-50 of the 1976 Code is amended to read:
"Section 44-43-50. The Department of Public Safety, its officers, and employees are immune from any civil liability for any acts or omissions in carrying out the provisions of Section 44-43-40."
Department name changed
SECTION 1107. Section 44-43-70(B) of the 1976 Code, as added by Act 505, Section 1 of 1992, is amended to read:
"(B) Special efforts must be made to educate and recruit minorities to volunteer as potential bone marrow donors. Dissemination of information and recruitment of bone marrow donors may be accomplished through use of the press, radio, and television, through the placement of educational materials in appropriate health care facilities, blood banks, and state and local agencies, and through any other means of public dissemination. The Medical University of South Carolina and the University of South Carolina in conjunction with the Department of Revenue and Taxation shall make educational materials available at all places where drivers' licenses are issued or renewed."
Commission on Alcohol and Drug Abuse changed to Department of Alcohol and other Drug Abuse Services
SECTION 1108. Chapter 49, Title 44 of the 1976 Code is amended to read:
"CHAPTER 49
Department of Alcohol and
Other Drug Abuse Services
Section 44-49-10. (A) There is established the Department of Alcohol and Other Drug Abuse Services. The department shall be vested with all the functions, powers, and duties, of the South Carolina Commission on Alcoholism and the South Carolina Commission on Alcohol and Drug Abuse and shall have full authority for formulating, coordinating and administering the state plans for controlling narcotics and controlled substances and alcohol abuse.
(B) All functions, powers, and duties of the commissioner of the narcotics and controlled substances section of the State Planning and Grants Division (Division of Administration in the Office of the Governor) are hereby transferred to the department, except those powers and duties related to the traffic of narcotics and controlled substances as defined in Section 44-53-130 which shall be vested in the State Law Enforcement Division.
(C) All rules and regulations promulgated by the commissioner of narcotics and controlled substances shall remain in effect until changed by the department.
(D) The department is authorized to establish a block grant mechanism to provide such monies as may be appropriated by the Legislature for this purpose to each of the agencies designated under Section 61-5-320(a). The distribution of these monies must be on a per capita basis according to the most recent United States Census. The agencies designated under Section 61-5-320(a) must expend any funds received through this mechanism in accordance with the county plans required under Section 61-5-320(b).
(E) The department is authorized to develop such rules and regulations not inconsistent with the provisions of this chapter as it may find to be reasonably appropriate for the government of the county plans called for in Section 61-5-320(b), and the financial and programmatic accountability of funds provided under this section and all other funds provided by the department to agencies designated under Section 61-5-320(a).
Section 44-49-20. The Department of Alcohol and Other Drug Abuse Services shall be headed by a director appointed by the Governor, upon the advice and consent of the Senate. The director is subject to removal by the Governor pursuant to the provisions of Section 1-3-240.
Section 44-49-40. (A) The department shall arrange for the exchange of information between governmental officials concerning the use and abuse of controlled substances.
(B) Results, information, and evidence received from the Department of Health and Environmental Control relating to the regulatory functions of this chapter and Article 3 of Chapter 53, including results of inspections conducted by such department, may be relied upon and acted upon by the department in conformance with its administration and coordinating duties under this Chapter and Article 3 of Chapter 53.
(C) The department shall:
(1) Plan, coordinate and cooperate in educational programs for schools, communities and general public designed to prevent and deter misuse and abuse of controlled substances;
(2) Promote better recognition of the problems of misuse and abuse of controlled substances within the regulated industry and among interested groups and organizations;
(3) Assist the regulated industry, interested groups and organizations in contributing to the reduction of misuse and abuse of controlled substances;
(4) Consult with interested groups and organizations to aid them in solving administrative and organizational problems;
(5) Evaluate procedures, projects, techniques, and controls conducted or proposed as part of educational programs on misuse and abuse of controlled substances;
(6) Disseminate the results of research on misuse and abuse of controlled substances to promote a better public understanding of what problems exist and what can be done to combat them;
(7) Assist in the education and training of state and local law enforcement officials in their efforts to control misuse and abuse of controlled substances;
(8) Encourage research on misuse and abuse of controlled substances;
(9) Cooperate in establishing methods to assess accurately the effects of controlled substances and to identify and characterize controlled substances with potential for abuse;
(10) Cooperate in making studies and in undertaking programs of research to
(a) Develop new or improved approaches, techniques, systems, equipment and devices to strengthen the enforcement of Sections 44-49-10, 44-49-40 and 44-49-50 and Article 3 of Chapter 53;
(b) Determine patterns of misuse and abuse of controlled substances and the social effects thereof; and
(c) Improve methods for preventing, predicting, understanding and dealing with the misuse and abuse of controlled substances.
(D) The department may enter into contracts with public agencies, institutions of higher education, and private organizations or individuals for the purpose of conducting research, demonstrations, or special projects which bear directly on misuse and abuse of controlled substances.
(E) The department may enter into contracts for educational and research activities without performance bonds.
(F) The department is authorized to accept gifts, bequests, devises, contributions, and grants, public or private, including federal funds, or funds from any other source for use in furthering the purpose of the department. The department is authorized to administer the grants and contracts arising from the federal program entitled the Drug-Free Schools and Communities Act of 1986, P.L. 99-570.
Section 44-49-50. It shall be the duty of all departments, officers, agencies, and employees of the State to cooperate with the Department of Alcohol and Other Drug Abuse Services in carrying out its functions. The Attorney General shall furnish such legal services as are necessary to the department.
Section 44-49-60. The department shall appoint a supervisor of adult education for the prevention of alcoholism, who shall be responsible for activating and implementing an adequate alcoholic education program for the citizens of this State above high school age. The program shall be designed to prevent or reduce alcoholism in this State and to create a recognition and understanding of the problem.
In carrying out the provisions of this section the department and the supervisor of adult education for the prevention of alcoholism may consult and work in conjunction with groups such as Alcoholics Anonymous, the Yale Center of Alcohol Studies of Yale University, the Research Council on Problems of Alcohol of the American Association for the Advancement of Science, the South Carolina Medical Association, the department of Mental Health, the Christian Action Council, the Committee on Alcoholism of the South Carolina Conference of Social Work and other groups or agencies that are able to assist in the study, prevention, treatment and rehabilitation of alcoholics and in a scientific educational program on the problems of alcohol.
Section 44-49-70. The department shall furnish the supervisor of adult education for the prevention of alcoholism adequate ways and means to accomplish an effective educational program for the prevention of alcoholism in this State.
Section 44-49-80. The department shall establish a program to provide alcohol and drug abuse intervention, prevention, and treatment services for the public schools of the State. The department shall provide staff and support necessary to administer the program. Funds for this program must be annually appropriated by the General Assembly from the Education Improvement Act of 1984 Fund as it determines appropriate. The appropriated funds must be forwarded to the South Carolina Department of Alcohol and Other Drug Abuse Services from the Education Improvement Act of 1984 Fund in the manner the State Treasurer shall direct."
Commissioner changed to director
SECTION 1109. Section 44-52-10(4) of the 1976 Code is amended to read:
"(4) `Treatment facility' means any facility licensed or approved by the Department of Health and Environmental Control equipped to provide for the care and treatment of chemically dependent persons including the Division of Alcohol and Drug Addiction Services of the South Carolina Department of Mental Health, and any other treatment facility approved by the Director of the Department of Mental Health."
Commissioner changed to director
SECTION 1110. Section 44-53-620(a) of the 1976 Code is amended to read:
"(a) `Director' means the Director of the Department of Health and Environmental Control;"
Commissioner changed to director
SECTION 1111. Section 44-53-630 of the 1976 Code is amended to read:
"Section 44-53-630. (A) There is established in the Department of Health and Environmental Control a controlled substances therapeutic research program. The program shall be administered by the director. The program shall distribute to cancer chemotherapy and radiology patients and to glaucoma patients who are certified pursuant to this article marijuana under the terms and conditions of this article for the purpose of alleviating the patient's discomfort, nausea and other painful side effects of their disease or chemotherapy treatments. The department shall promulgate regulations necessary for the proper administration of this article and in such promulgation, the department shall take into consideration those pertinent regulations promulgated by the Drug Enforcement Agency, U. S. Department of Justice; Food and Drug Administration; the National Institute on Drug Abuse, and the National Institutes of Health.
(B) Except as provided in subsection (c) of Section 44-53-640, the controlled substances therapeutic research program shall be limited to cancer chemotherapy and radiology patients and glaucoma patients, who are certified to the patient qualification review advisory board by a practitioner as being involved in a life-threatening or sense-threatening situation and who are not responding to conventional controlled substances or where the conventional controlled substances administered have proven to be effective but where the patient has incurred severe side effects."
Commissioner changed to Director; board responsibilities changed to department
SECTION 1112. Section 44-53-640 of the 1976 Code is amended to read:
"Section 44-53-640. (a) The director shall appoint a Patient Qualification Review Advisory Board to serve at his pleasure. The Patient Qualification Review Advisory Board shall be comprised of:
(1) a physician licensed to practice medicine in South Carolina and certified by the American Board of Ophthalmology;
(2) a physician licensed to practice medicine in South Carolina and certified by the American Board of Internal Medicine and also certified in the subspecialty of medical oncology;
(3) a physician licensed to practice medicine in South Carolina and certified by the American Board of Psychiatry; and
(4) a pharmacologist holding a Doctoral degree or its equivalent.
Members of the board shall be paid the usual per diem, mileage and subsistence as provided by law for members of boards, commissions and committees.
(b) The department shall review all applicants for the controlled substances therapeutic research program and their licensed practitioners and certify their participation in the program.
(c) The department, in its discretion, may include other disease groups for participation in the controlled substances therapeutic research program after pertinent medical data have been presented by a practitioner to both the director and the department and after necessary approval is received by the appropriate federal agencies."
Commissioner changed to director
SECTION 1113. Section 44-53-650 of the 1976 Code is amended to read:
"Section 44-53-650. (a) The director shall obtain marijuana through whatever means he deems most appropriate consistent with federal law.
(b) The director shall cause such analyzed marijuana to be transferred to various locations throughout the State that provide adequate security as set forth in federal and state regulations for the purpose of distributing such marijuana to the certified patient in such manner as is consistent with federal law. The patient shall not be required to pay for such marijuana but the director may charge for ancillary medical services provided by the department to compensate the department for the cost, if any, of securing such marijuana, and providing it to the patient."
Commissioner changed to director
SECTION 1114. Section 44-53-660 of the 1976 Code is amended to read:
"Section 44-53-660. The director shall annually report to the General Assembly his opinion as to the effectiveness of this program and his recommendations for any changes thereto."
Department name changed
SECTION 1115. Section 44-53-710 of the 1976 Code is amended to read:
"Section 44-53-710. The South Carolina Department of Health and Environmental Control shall have exclusive control over the controlled substance methadone, except for the South Carolina Department of Mental Health facilities or treatment programs licensed by the South Carolina Department of Mental Health and approved by the South Carolina Department of Alcohol and Other Drug Abuse Services or the federal government."
Department name changed
SECTION 1116. Section 44-53-740 of the 1976 Code is amended to read:
"Section 44-53-740. The Board of Health and Environmental Control shall promulgate regulations as may be necessary to carry out the provisions of this article. Such regulations shall not include criteria for admission to, continuance in, or discharge from any methadone maintenance program in a facility of the South Carolina Department of Mental Health or facility licensed by the South Carolina Department of Mental Health and approved by the South Carolina Department of Alcohol and Other Drug Abuse Services or the federal government."
Commissioner changed to director
SECTION 1117. Section 44-53-1320 of the 1976 Code is amended to read:
"Section 44-53-1320. As used in this article, unless the context requires otherwise:
(a) `Department' means the Department of Health and Environmental Control.
(b) `Dwelling' means a structure, all or part of which is designed or used for human habitation, including any outbuilding, fencing or other structure used in conjunction therewith.
(c) `Dwelling unit' means any room, group of rooms or other areas of a dwelling.
(d) `Exposed surface' means any interior surface of a dwelling, dwelling unit or child care facility and those exterior surfaces of such structures which are chewable by or readily accessible to children six years of age or younger, such as stairs, porches, railings, windows, doors and siding from ground level to a vertical distance of at least five feet, including those interior or exterior surfaces where peeling or chipping paint or other similar surface-coating material occurs or is likely to occur.
(e) `Householder' means the occupant of a dwelling or dwelling unit or his representative, the owner of an unoccupied dwelling unit or his representative or the owner of a day care facility or his representative.
(f) `Lead base substance' means any paint, lacquer, glaze or other similar surface-coating material and putty or plaster containing more than six hundredths of one percent lead by weight, calculated as lead metal in the total nonvolatile content or in the dried paint film or seven-tenths or more milligrams per square centimeter of lead in the dried film of paint already applied as measured by in situ analyzer device.
(g) `Person' means any individual, firm, corporation, association, trust or partnership.
(h) `Sale' or `sell' means transfer or delivery for a consideration, barter, exchange or gift or offer therefor.
(i) `Toys' means all articles intended for use by infants or children as playthings.
(j) `Lead poisoning' means a blood lead level at an elevation hazardous to health as established by the director.
(k) `Director' means the Director of the Department of Health and Environmental Control.
(l) `Child care facility' means a structure or portion thereof in which children under six years of age are present on a regular basis, including any structure used primarily as a residence, school, nursery, day care center, clinic, treatment center or other facility catering to the needs of children including any outbuilding, fencing or other structure used in conjunction therewith."
Commissioner changed to director
SECTION 1118. Section 44-53-1340 of the 1976 Code is amended to read:
"Section 44-53-1340. No person shall sell, offer for sale, deliver, give away or possess with intent to sell, deliver or give away any of the following:
(a) Toys, furniture, cooking, drinking or eating utensils if the exterior finish contains a lead base substance.
(b) Fixtures or other objects intended to be used, installed or located in or upon any exposed surface of a dwelling, dwelling unit or child care facility if the exterior finish contains a lead base substance.
(c) Any lead base substance for use on any exposed surface of any dwelling, dwelling unit or child care facility. The director by regulation may exempt from the provisions of this item lead based paints that are not intended or suitable for use on or within residential premises which are not advertised or labeled as intended or suitable for such uses and which are not sold to the general public on a retail basis if he finds that the sale or use of such paints will not result in the exposure of children younger than six years of age to the paints and will not result in an additional danger to life or health for such children or for the general public. Also by regulation, he may exempt from the provisions of this item lead based ceramic glazes or the raw lead and raw lead compounds utilized in the home manufacturing of glazes on such terms as he finds will not result in additional danger to life or health.
The provisions of this section shall not apply to the sale of products which conform to the standards for the sale of lead base paint products under federal law."
Commissioner changed to director
SECTION 1119. Section 44-53-1360 of the 1976 Code is amended to read:
"Section 44-53-1360. The director shall establish a program for early diagnosis of cases of lead poisoning. The program shall provide for systematic examination for lead poisoning of all children at risk under six years of age residing within the State. Examinations shall be made by such means and at such intervals as the director shall determine to be medically necessary and proper.
The program, to the extent that all children residing within the State are not systematically examined, shall give priority in examinations to those children residing, or who have recently resided, in areas where significant numbers of lead poisoning cases have been reported recently or where other reliable evidence indicates that significant numbers of lead poisoning cases may be found.
When the department is informed of a case of lead poisoning pursuant to Section 44-53-1380 or otherwise, the director or his representative shall cause to have examined within thirty days all other children under six years of age, and such other children as he may find advisable to examine, residing or recently residing in the household of the victim or in all other dwelling units in the dwelling of the victim unless the parents or guardian of the child objects to the examination because it conflicts with his religious beliefs or practices.
The department shall maintain comprehensive records of all examinations conducted pursuant to this section. The records shall be geographically indexed in order to determine the location of areas of relatively high incidence of lead poisoning. The records shall be public records but the name of the persons examined shall not be included. A summary of the results of all examination conducted pursuant to this section shall be released yearly to all interested parties or more frequently if the director so determines.
All cases or probable cases of lead poisoning, as defined by regulation of the director, found in the course of examinations conducted pursuant to this section shall be reported immediately to the affected person, to his parent or legal guardian if he is a minor, and to the director. The director or his representative shall inform such persons or agencies as he deems advisable of the existence of such case or probable case. The name of any person contracting lead poisoning shall not be included unless the director determines that the inclusion is necessary to protect his health and well-being."
Commissioner changed to director
SECTION 1120. Section 44-53-1380 of the 1976 Code is amended to read:
"Section 44-53-1380. Whenever any physician, hospital, public health nurse or other diagnosing person or agency knows or has reason to believe that any person he examines or treats has or is suspected of having lead poisoning, such person shall within seven days give notice thereof to the department. The department shall specify the procedure to be followed in making the reports and shall provide the necessary forms. When the reports are received, the department shall, by laboratory work and otherwise, assist the attending physician or other person in determining whether the case is one of lead poisoning and, if so, the source of the poison.
The director shall maintain comprehensive records of all reports submitted pursuant to this section. The records shall be geographically indexed in order to determine the location of areas of relatively high incidence of lead poisoning. The records shall be public records but the name of any person contracting lead poisoning shall not be included."
Commissioner changed to director
SECTION 1121. Section 44-53-1390 of the 1976 Code is amended to read:
"Section 44-53-1390. When the department is informed of a case of lead poisoning pursuant to Sections 44-53-1360 and 44-53-1380, or otherwise, any authorized representative of the department upon presentation of the appropriate credentials to the householder and with the consent of the householder or his agent may enter and inspect a private dwelling or child care facility at reasonable times and in a reasonable manner for the purpose of ascertaining the presence of lead base substances and may remove samples of objects necessary for laboratory analysis. If the householder refuses admission to the premises, the inspector shall obtain an inspection warrant before he can inspect the premises.
Upon the request of any occupant, the director or his representative shall cause to have the occupant's premises inspected within a reasonable time, not to exceed ten days, unless systematic inspection of the areas in which the person requesting the inspection resides is scheduled within thirty days, in which case the inspection may be deferred up to twenty additional days."
Commissioner changed to director
SECTION 1122. Item (c) of the first paragraph of Section 44-53-1430 of the 1976 Code is amended to read:
"(c) The department shall give notice of the existence of the substances to the owner or managing agent and order that the lead base substance on the exposed surface be removed, replaced or securely and permanently covered within thirty days of receipt of notice. If, at the discretion of the director, the condition cannot be corrected within thirty days, an extension of reasonable time may be granted."
Commissioner changed to director
SECTION 1123. Section 44-53-1440 of the 1976 Code is amended to read:
"Section 44-53-1440. No person shall knowingly rent a dwelling or dwelling unit to be occupied by children under six years of age which has been posted and ordered cleared of harmful lead base substances in accordance with Section 44-53-1430. If the presence of lead base paint or other surface-coating materials is unsuspected and becomes known when the dwelling or dwelling unit is already rented to a family with children under six years of age, the family of the children shall not be evicted for that reason unless a court order is issued pursuant to Section 44-53-1470(2). The owner and occupant of the dwelling or dwelling unit shall be given written notice by the director or his representative advising of the existence of such substances in the dwelling or dwelling unit and ordering that within thirty days such lead base substances be removed, replaced or securely and permanently covered."
Commissioner changed to director
SECTION 1124. Section 44-53-1450 of the 1976 Code is amended to read:
"Section 44-53-1450. The director may adopt such regulations as may be necessary to carry out the intent and provisions of this article; provided, however, that the promulgation of any regulation which is contrary to or inconsistent with federal law shall be null and void."
Commissioner changed to director
SECTION 1125. Section 44-53-1470 of the 1976 Code is amended to read:
"Section 44-53-1470. If the owner of any residential property or child care facility who is notified pursuant to this article of a dangerous level of lead in paint or other surface-coating material present upon his premises refuses or does not satisfactorily correct or remove such dangerous conditions within the time specified by Section 44-53-1430, the director or his representative may:
(1) Cause such building, structure or portion thereof to be made safe. For the purpose of removing the public health hazard, the director or his representative may immediately enter the structure or go upon the land on which it stands and with such assistance and at such cost as he deems necessary remove the nuisance. Cost incurred, if not paid by the property owner or agent, shall be borne by the State Budget and Control Board which shall acquire a lien on the property to the amount of such costs, which shall be recorded in the office of the clerk of court or register of mesne conveyances in the county where the property is situated and the lien shall be enforceable as a tax lien, junior in priority to any other prior recorded lien or mortgage on the property.
(2) Upon request, and with the consent of the owner or his representative, obtain an order from a court of competent jurisdiction that the structure be declared unfit for human habitation and shall not be leased, rented or otherwise occupied as a residence or child care facility until such time as the lead poisoning conditions are abated."
Commissioner changed to director
SECTION 1126. Section 44-55-20(b) of the 1976 Code is amended to read:
"(b) `Director' means the duly constituted director of the department or his authorized agent."
Commissioner changed to director
SECTION 1127. Section 44-55-40(j) of the 1976 Code is amended to read:
"(j) The Director of the Department of Health and Environmental Control shall classify all public water supplies giving due regard to the size, type, complexity, physical condition, source of supply and treatment process employed by such public water supply and the skill, knowledge and experience necessary for the operation of such supplies. The classification shall be based on the following groups:
Group I. All community water supplies which serve less than fifty taps and do not treat the water; all community water supplies which purchase all potable water from another public water supply and do not chemically treat the water; and all noncommunity water supplies which do not treat the water.
Group II. All community water supplies which serve fifty or more taps, obtain their water from wells or springs, and do not chemically treat the water.
Group III. All public water supplies that treat water by simple addition of a chemical for the purpose of pH adjustment or disinfection, or which control taste and color by carbon absorption.
Group IV. All public water supplies employing conventional treatment techniques in the treatment of surface or ground water.
Group V. All public water supplies employing advanced treatment techniques, such as reverse osmosis or activated carbon filtration, or all water systems which serve a total population in excess of two hundred thousand."
Regulations to be developed with Water Resources Commission deleted
SECTION 1128. Section 44-55-40(m) of the 1976 Code is amended to read:
"(m) The board, to ensure that underground sources of drinking water are not contaminated by improper well construction and operation, shall be authorized to promulgate regulations as developed by the Advisory Committee established pursuant to Section 44-55-45, setting standards for the construction, maintenance, operation, and abandonment of any well except for wells where well construction, maintenance and abandonment are regulated by the Groundwater Use Act of 1969, Sections 49-5-10 et seq., Sections 48-43-10 et seq., oil and gas production, or the Water Use Reporting Act. For such excepted wells, the board is authorized to adopt regulations. The board shall further ensure that all wells are constructed in accordance with the standards. The board shall make available educational training on the standards to well drillers or well contractors who desire such training."
Commissioner changed to director; department name changed
SECTION 1129. Section 44-55-45 of the 1976 Code is amended to read:
"Section 44-55-45. An advisory committee to the board shall be appointed for the purpose of advising the board during development or subsequent amendment of regulatory standards for the construction, maintenance, operation, and abandonment of wells subject to the jurisdiction of the board. The Advisory Committee shall be composed of eight members appointed by the board. Five members shall be active well contractors, one member shall be a registered professional engineer with experience in well design and construction, one member shall be a consulting hydrogeologist with experience in well design and construction, and one member shall be engaged in farming and shall represent the public at large. Three ex officio members shall also serve on the Advisory Committee, one of whom shall be an employee of the Department of Health and Environmental Control, and appointed by the Director thereof, two of whom shall be employees of the South Carolina Department of Natural Resources and appointed by the Director thereof.
The term of office of members of the Advisory Committee shall be for four years and until their successors are appointed and qualify with a maximum of two consecutive terms. The initial terms of office shall be staggered and any member may be removed for cause after proper notification and an opportunity to be heard."
Commissioner changed to director
SECTION 1130. Section 44-55-60 of the 1976 Code is amended to read:
"Section 44-55-60. (a) An imminent hazard shall be considered to exist when in the judgment of the director there is a condition which may result in a serious immediate risk to public health in a public water supply.
(b) In order to eliminate an imminent hazard, the director may, without notice or hearing, issue an emergency order requiring the water supplier to immediately take such action as is required under the circumstances to protect the public health. A copy of the emergency order shall be served by certified mail or other appropriate means. An emergency order issued by the director shall be effected immediately and binding until such order is reviewed and modified by the board or modified or rescinded by a court of competent jurisdiction."
Commissioner changed to director
SECTION 1131. Section 44-55-2320(2) of the 1976 Code is amended to read:
"(2) `Director' means the director of the department or his authorized agent."
Commissioner changed to director
SECTION 1132. Section 44-55-2360 of the 1976 Code is amended to read:
"Section 44-55-2360. It is unlawful for a person to fail to comply with the requirements of this article and regulations promulgated by the department including a permit or order issued by the board, director or department."
Commissioner changed to director
SECTION 1133. Section 44-56-20 of the 1976 Code is amended to read:
"Section 44-56-20. Definitions as used in this chapter:
(1) `Board' means the South Carolina Board of Health and Environmental Control which is charged with responsibility for implementation of the Hazardous Waste Management Act.
(2) `Director' means the director of the department or his authorized agent.
(3) `Department' means the Department of Health and Environmental Control, including personnel thereof authorized by the board to act on behalf of the department or board.
(4) `Disposal' means the discharge, deposit, injection, dumping, spilling, leaking, or placing of any hazardous waste into or on any land or water so that such substance or any constituent thereof may enter the environment or be emitted into the air or discharged into any waters, including groundwater.
(5) `Generation' means the act or process of producing waste materials.
(6) `Hazardous waste' means any waste, or combination of wastes, of a solid, liquid, contained gaseous, or semisolid form which because of its quantity, concentration, or physical, chemical, or infectious characteristics may in the judgment of the department:
a. cause, or significantly contribute to an increase in mortality or an increase in serious irreversible, or incapacitating reversible illness; or
b. pose a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported, or disposed of, or otherwise managed. Such wastes may include, but are not limited to, those which are toxic, corrosive, flammable, irritants, strong sensitizers, persistent in nature, assimilated, or concentrated in tissue, or which generate pressure through decomposition, heat, or other means. The term does not include solid or dissolved materials in domestic sewage, or solid dissolved materials in irrigation return flows, or industrial discharges which are point sources subject to NPDES permits under the Federal Water Pollution Control Act or the Pollution Control Act of South Carolina or source, special nuclear, or byproduct material as defined by the Atomic Energy Act of 1954.
(7) `Hazardous waste management' means the systematic control of the collection, source separation, storage, transportation, processing, treatment, recovery, and disposal of hazardous wastes.
(8) `Manifest' means the form used for identifying the quantity, composition, or origin, routing, and destination of hazardous waste during its transportation from the point of generation to the point of disposal, treatment, or storage.
(9) `Permit' means the process by which the department can ensure cognizance of, as well as control over the management of hazardous wastes.
(10) `Storage' means the actual or intended containment of wastes, either on a temporary basis or for a period of years, in such manner as not to constitute disposal of such hazardous wastes.
(11) `Transport' means the movement of hazardous wastes from the point of generation to any intermediate points and finally to the point of ultimate treatment, storage or disposal.
(12) `Treatment' means any method, technique, or process, including neutralization, designed to change the physical, chemical, or biological character or composition of any hazardous waste, so as to neutralize such waste or so as to render such waste nonhazardous, safer for transport, amenable for recovery, amenable for storage, reduced in volume, or suitable for final disposal.
(13) `Uncontrolled hazardous waste site' means any site where hazardous wastes or other hazardous substances have been released, abandoned, or otherwise improperly managed so that governmental response action is deemed necessary to remedy actual or potential damages to public health, the public welfare, or the environment.
For the purpose of this item the term `hazardous waste' does not include petroleum, including crude oil or fraction thereof; natural gas; natural gas liquids; liquified natural gas; synthetic gas usable for fuel; or mixtures of natural gas and such synthetic gas.
(14) `Response action' is any cleanup, containment, inspection, or closure of a site ordered by the director as necessary to remedy actual or potential damages to public health, the public welfare, or the environment."
Commissioner changed to director
SECTION 1134. Section 44-56-50 of the 1976 Code is amended to read:
"Section 44-56-50. Notwithstanding any other provision of this chapter, the director, upon receipt of information that the storage, transportation, treatment, or disposal of any waste may present an imminent and substantial hazard to the health of persons or to the environment, may take such action as he determines to be necessary to protect the health of persons or the environment. The action the director may take may include, but is not limited to:
1. Issuing an order directing the operator of the treatment, storage or disposal facility or site, or the custodian of the waste, which constitutes the hazard, to take such steps as are necessary to prevent the act or eliminate the practice which constitutes the hazard. Such action may include, with respect to a facility or site, permanent or temporary cessation of operation;
2. Requesting that the Attorney General commence an action enjoining such acts or practices. Upon a showing by the department that a person has engaged in such acts or practices, a permanent or temporary injunction, restraining order, or other order may be granted;
3. Issuing an order directing a response action by the department to eliminate the hazard and protect the public from exposure to the hazard; and
4. Requesting the Attorney General to commence an action to recover the costs of the response action from all parties liable under state or federal law."
Commissioner changed to director
SECTION 1135. Section 44-56-130 of the 1976 Code is amended to read:
"Section 44-56-130. After the promulgation of the regulations required under Section 44-56-30:
(1) It shall be unlawful for any person to generate, store, transport, treat, or dispose of hazardous wastes in this State without reporting such activity to the department as required by such regulations.
(2) It shall be unlawful for any person to generate, store, transport, treat, or dispose of hazardous wastes in this State without complying with the procedures described in such regulations.
(3) It shall be unlawful for any person to fail to comply with this chapter and rules and regulations promulgated pursuant to this chapter; to fail to comply with any permit issued under this chapter; or to fail to comply with any order issued by the board, director, or department.
(4) It is unlawful for any person who owns or operates a waste treatment facility within this State to accept any hazardous waste generated in any jurisdiction which prohibits by law the treatment of that hazardous waste within that jurisdiction or which has not entered into an interstate or regional agreement for the safe treatment of hazardous waste pursuant to the federal Comprehensive Environmental Response, Compensation and Liability Act. Written documentation demonstrating compliance with this item must be submitted to the department before the transportation of any hazardous waste into the State for treatment.
(5) It is unlawful for any person who owns or operates a waste storage facility within this State to accept any hazardous waste generated in any jurisdiction which prohibits by law the storage of that hazardous waste within that jurisdiction or which has not entered into an interstate or regional agreement for the safe storage of hazardous waste pursuant to the federal Comprehensive Environmental Response, Compensation and Liability Act. Written documentation demonstrating compliance with this item must be submitted to the department before the transportation of any hazardous waste into the State for storage.
(6) It is unlawful for any person who owns or operates a waste disposal facility within this State to accept any hazardous waste generated in any jurisdiction which prohibits by law the disposal of that hazardous waste within that jurisdiction or which has not entered into an interstate or regional agreement for the safe disposal of hazardous waste pursuant to the federal Comprehensive Environmental Response, Compensation and Liability Act. Written documentation demonstrating compliance with this item must be submitted to the department before the transportation of any hazardous waste into the State for disposal."
Commissioner changed to director
SECTION 1136. Section 44-56-840 of the 1976 Code is amended to read:
"Section 44-56-840. (A) There is created a Hazardous Waste Management Select Oversight Committee to monitor funds generated from the fees imposed under the provisions of Section 44-56-170(C) and (E) and designated for the fund under the provisions of Section 44-56-810. The committee shall oversee the research efforts and projects approved for funding by the foundation. The committee is composed of:
(1) the Governor or his designee;
(2) the Chairman of the House Agriculture and Natural Resources Committee or his designee;
(3) the Chairman of the Senate Agriculture and Natural Resources Committee or his designee;
(4) the Chairman of the House Labor, Commerce and Industry Committee or his designee;
(5) the Chairman of the Senate Labor, Commerce and Industry Committee or his designee;
(6) the Director of the Department of Health and Environmental Control or his designee;
(7) one member representing business and industry appointed by the Governor;
(8) one public member appointed by the Governor;
(9) one member representing environmental interests appointed by the Governor;
(10) the Lieutenant Governor or his designee from the Hazardous Waste Task Force.
(B) The Chairman of the Select Oversight Committee must be elected from the membership of the committee.
(C) The committee shall meet quarterly and shall submit annually a report to the General Assembly on all funds monitored under the provisions of this section before March fifteenth. Staff support must come from existing staff assigned by the committee."
Commissioner changed to director
SECTION 1137. Section 44-61-70(a) of the 1976 Code is amended to read:
"(a) The appropriate official of the department having authority over emergency services shall have authority to recommend suspension of the license, certificate or permit of any person, firm, corporation, association, county, district, municipality or metropolitan government or agency for noncompliance with this chapter or the standards or the rules and regulations promulgated pursuant thereto.
The department official, if he has reason to believe that reasonable grounds exist, shall recommend to the board the suspension or revocation of the authorization, license, permit or certification of the licensee and shall notify the licensee of his recommendation not less than thirty days before the board shall consider such recommendation. The notice shall specify the alleged grounds therefor and the licensee shall be offered an opportunity to be heard at the hearing of the board in answer thereto. The board, at a full evidentiary hearing, shall determine whether or not the authorization, license, permit or certification shall be suspended or revoked. The decision to suspend or revoke shall be by majority vote of the total membership of the board. Such decision shall constitute final administrative action and shall be subject to review by the Circuit Court upon petition filed with the court and a copy thereof served upon the secretary of the board within thirty days from the date of delivery of the decision of the board from which such person is appealing.
No suspension or revocation of a license, authorization, permit or certification shall be effective until such time as the question of suspension or revocation has been finally resolved and if a decision of the board is appealed in court, no such suspension or revocation shall be effective until a final court determination is made. Provided, however, that if the Director of the Department of Health and Environmental Control determines that a clear and present danger would exist to the public health, safety or welfare if the license, authorization, permit or certification were not immediately suspended or revoked, the suspension or revocation shall be immediate."
Commissioner changed to director
SECTION 1138. Section 44-63-30 of the 1976 Code is amended to read:
"Section 44-63-30. The Director of the Department of Health and Environmental Control is the state registrar of vital statistics and shall carry into effect the regulations and orders of the department. The department shall provide suitable apartments properly equipped with fireproof vaults and filing cases for the permanent preservation of all official records."
Department of Veterans' Affairs changed to division of Governor's Office
SECTION 1139. Section 44-63-110 of the 1976 Code is amended to read:
"Section 44-63-110. For making, furnishing, or certifying any card, certificate, or certified copy of the record, for filing a record amendment according to the provisions of Section 44-63-60, 44-63-80, 44-63-90 or 44-63-100, or for searching the record, when no card, certificate, or certified copy is made, a fee in an amount as determined by the Board of Health and Environmental Control must be paid by the applicant. The amount of the fee established by the board may not exceed the cost of the services performed and to the extent possible must be charged on a uniform basis throughout the State. When verification of the facts contained in these records is needed for Veterans' Administration purposes in connection with a claim, it must be furnished without charge to the Veterans' Affairs Division of the Governor's Office or to a county veterans' affairs officer upon request and upon the furnishing of satisfactory evidence that the request is for the purpose authorized in this chapter."
Commissioner changed to director
SECTION 1140. Section 44-65-80 of the 1976 Code is amended to read:
"Section 44-65-80. The department shall, by registered mail, give written notification to the director of the day care facility when any deficiency in service, malpractice, or violation of any rule or regulation exists.
(a) The director of the day care facility shall be allowed thirty days to correct such deficiency, malpractice, or violation, unless such presents immediate danger to the health, safety, or well-being of the participants. In such case, immediate correction must be accomplished or the license of the day care facility shall be suspended and activities immediately terminated until such correction has been accomplished. Provided, after written notice to correct a deficiency in the real properties has been received by a facility, no such further notice of deficiencies in the real properties shall be given within six months after the deficiency has been corrected. Such six-month time limit shall not apply to inspections for sanitation purposes.
(b) If the department deems necessary the denial, suspension, or revocation of a license, it shall, by registered mail, send the applicant or the director of the day care facility the decision and the specific reasons for such decision.
(c) Any denial, suspension, or revocation of any license shall become final at twelve o'clock midnight on the thirtieth day following the mailing of written notification, unless the applicant or the director of the day care facility shall give written notice of his desire for an appeal hearing. If such notice is received by the department within thirty days from notification, the director of the facility shall be given a hearing before authorized representatives of the department, and may present such evidence as may be pertinent and proper. On the basis of such evidence, the decision of the department shall be affirmed or set aside by the director of the department. A copy of the decision of the director and the facts and particular reasons on which it is based shall be sent by registered mail to the applicant or the director of the day care facility.
(d) The procedures governing hearings shall be in accordance with the rules promulgated by the department.
(e) Any applicant or director of a day care facility who is dissatisfied with the department's appeal decision may appeal to the appropriate court for judicial relief from the decision."
Commission changed to department
SECTION 1141. Section 44-67-30 of 1976 Code is amended to read:
"Section 44-67-30. As used in this chapter unless the context indicates otherwise:
(1) `Department' means the Department of Health and Environmental Control;
(2) `Director' means the director of the department;
(3) `Disposable package or container' means all packages or containers defined as such by rules and regulations adopted by the department;
(4) `Litter' means all waste material including but not limited to disposable packages or containers, trash, garbage or refuse, but not including the wastes of the primary processes of mining, logging, sawmilling or farming;
(5) `Litter receptacle' means those containers adopted by the department which may be standardized as to size, shape, capacity and color and which may bear a state anti-litter symbol, as well as any other receptacle suitable for the depositing of litter;
(6) `Person' means an individual, partnership, copartnership, cooperative, firm, company, public or private corporation, political subdivision, agency of the State, trust, estate, joint structure company or any other legal entity or its legal representative, agent or assigns.
(7) `Vehicle' means every device capable of being moved upon a public highway and in, upon or by which any person or property is or may be transported or drawn upon a public highway, except devices moved by human or animal power or used exclusively upon stationary rails or tracks;
(8) `Watercraft' means any boat, ship, vessel, barge or other floating craft;
(9) `Public place' means any area that is used or held out for use by the public, whether owned or operated by public or private interests.
(10) `Open dump' means a land disposal site for solid waste which does not qualify as a sanitary landfill.
(11) `Solid waste' means any garbage, refuse, sludge from a waste treatment facility, water supply plant, or air pollution control facility and other discarded material, including solid, liquid, semisolid or contained gaseous material resulting from industrial, commercial, mining and agricultural operations and from community activities.
This term does not include solid or dissolved material in domestic sewage, or solid or dissolved materials in irrigation return flows or industrial discharges which are point sources subject to NPDES permits under the Federal Water Pollution Control Act, as amended, or the Pollution Control Act of South Carolina, as amended, or source, special nuclear, or byproduct material as defined by the Atomic Energy Act of 1954, as amended.
(12) `Sanitary landfill' means a method of disposing of solid waste on land without creating pollution, nuisances, environmental threats or hazards to public health and safety.
(13) `Board' means the South Carolina Board of Health and Environmental Control."
Commissioner changed to director; Wildlife officers changed to enforcement officers of Natural Resources Enforcement Division of the Department of the Natural Resources
SECTION 1142. Section 44-67-50 of the 1976 Code is amended to read:
"Section 44-67-50. The director may designate trained employees of the department to be vested with police powers to enforce and administer the provisions of this chapter and all rules and regulations adopted thereunder. The director shall also have authority to contract with other state and local governmental agencies having law enforcement capabilities for services and personnel reasonably necessary to carry out the enforcement provisions of this chapter. In addition, state highway patrol officers, enforcement officers of the Natural Resources Enforcement Division of the Department of Natural Resources, fire marshals and police officers, and those employees of the Department of Health and Environmental Control and the Parks, Recreation and Tourism Department vested with police powers all shall enforce the provisions of this chapter and all rules and regulations adopted thereunder and are hereby empowered to issue citations to or arrest, without warrant, persons violating any provision of this chapter or any of the rules and regulations adopted hereunder.
All of the foregoing enforcement officers may serve and execute all warrants, citations and other process issued to enforce the provisions of this chapter."
Commissioner changed to director; department name changed
SECTION 1143. Section 44-85-20(A) of the 1976 Code is amended to read:
"(A) The following officials or their designees shall serve as members of the council:
(1) the Commissioner of the South Carolina Department of Health and Environmental Control;
(2) the State Superintendent of Education;
(3) the Director of the Department of Social Services;
(4) the Director of the Division on Aging in the Governor's Office;
(5) the Director of Mental Health;
(6) the Director of the Department of Disabilities and Special Needs;
(7) the Executive Director of the State Health and Human Services Finance Commission;
(8) the Chairman of the Statewide Health Coordinating Council;
(9) the President of the South Carolina Chapter of the American Academy of Pediatrics;
(10) the President of the South Carolina Chapter of the American Academy of Gerontology;
(11) the Director of the Clemson University Extension Service;
(12) the Director of the South Carolina State College Extension Service;
(13) the Director of the South Carolina Nutrition Council;
(14) the Director of the South Carolina Network of Food Banks;
(15) the Director of the South Carolina Legal Services Association;
(16) the Director of the South Carolina Chapter of the American Association of Retired Persons;
(17) the Director of the South Carolina Farm Bureau;
(18) the Director of the South Carolina Committee Against Hunger;
(19) the President of the South Carolina Association of Community Agencies;
(20) the President of the South Carolina Dietetic Association."
Commissioner changed to director
SECTION 1144. Section 44-85-20(A) of the 1976 Code is amended to read:
"(A) The following officials or their designees shall serve as members of the council:
(1) the Director of the South Carolina Department of Health and Environmental Control;
(2) the State Superintendent of Education;
(3) the Director of the Department of Social Services;
(4) the Director of the Division on Aging in the Governor's Office;
(5) the Director of Mental Health;
(6) the Director of the Department of Disabilities and Special Needs;
(7) the Executive Director of the State Health and Human Services Finance Commission;
(8) the Chairman of the Statewide Health Coordinating Council;
(9) the President of the South Carolina Chapter of the American Academy of Pediatrics;
(10) the President of the South Carolina Chapter of the American Academy of Gerontology;
(11) the Director of the Clemson University Extension Service;
(12) the Director of the South Carolina State College Extension Service;
(13) the Director of the South Carolina Nutrition Council;
(14) the Director of the South Carolina Network of Food Banks;
(15) the Director of the South Carolina Legal Services Association;
(16) the Director of the South Carolina Chapter of the American Association of Retired Persons;
(17) the Director of the South Carolina Farm Bureau;
(18) the Director of the South Carolina Committee Against Hunger;
(19) the President of the South Carolina Association of Community Agencies;
(20) the President of the South Carolina Dietetic Association."
Commissioner changed to director
SECTION 1145. Section 44-85-20(A) of the 1976 Code is amended to read:
"(A) The following officials or their designees shall serve as members of the council:
(1) the Director of the South Carolina Department of Health and Environmental Control;
(2) the State Superintendent of Education;
(3) the Director of the Department of Social Services;
(4) the Director of the Division on Aging in the Governor's Office;
(5) the Director of Mental Health;
(6) the Director of the Department of Disabilities and Special Needs;
(7) the Director of the State Department of Health and Human Services;
(8) the Chairman of the Statewide Health Coordinating Council;
(9) the President of the South Carolina Chapter of the American Academy of Pediatrics;
(10) the President of the South Carolina Chapter of the American Academy of Gerontology;
(11) the Director of the Clemson University Extension Service;
(12) the Director of the South Carolina State College Extension Service;
(13) the Director of the South Carolina Nutrition Council;
(14) the Director of the South Carolina Network of Food Banks;
(15) the Director of the South Carolina Legal Services Association;
(16) the Director of the South Carolina Chapter of the American Association of Retired Persons;
(17) the Director of the South Carolina Farm Bureau;
(18) the Director of the South Carolina Committee Against Hunger;
(19) the President of the South Carolina Association of Community Agencies;
(20) the President of the South Carolina Dietetic Association."
Commissioner changed to director
SECTION 1146. Section 44-85-30 of the 1976 Code is amended to read:
"Section 44-85-30. The council shall meet as soon as may be practicable after appointment for the purpose of organizing. The Director of the Department of Health and Environmental Control or his designee shall serve as chairman. The council shall elect a vice-chairman and also may elect from its membership other officers it considers necessary. The vice-chairman and other officers, if any, shall serve for terms of two years. The council shall meet at least once each quarter and at other times designated by the chairman. A majority of the council constitutes a quorum. Members of the council representing state agencies or committees are entitled to subsistence, per diem, and mileage authorized for members of state boards, committees, and commissions, to be paid from funds appropriated for the operation of the respective agency or committee. Members representing private organizations or groups are entitled to subsistence, per diem, and mileage authorized by law for members of state boards, committees, or commissions to be paid from funds appropriated for the operation of the Department of Health and Environmental Control only if the organization or group the member represents does not compensate its representative for service on the council and the member requests compensation from the department."
Commissioner changed to director
SECTION 1147. Section 44-85-50 of the 1976 Code is amended to read:
"Section 44-85-50. There must be employed within the Department of Health and Environmental Control an executive assistant to the council. The executive assistant must be appointed by the director of the department with the advice and consent of the council. The executive assistant is charged with the preparation of the three-year service plan and other duties and responsibilities established by the director and the council from time to time. The salaries of the executive assistant to the council, and other staff and clerical personnel employed by the department and assigned to execute the functions of the council and every other cost or disbursement for accomplishment of the functions of the council must be paid from sums appropriated by the General Assembly to the department."
Commissioner changed to director
SECTION 1148. Section 44-93-20(D) of the 1976 Code is amended to read:
"(D) `Director' means the director of the department or his authorized agent."
Commissioner changed to director
SECTION 1149. Section 44-93-50 of the 1976 Code is amended to read:
"Section 44-93-50. The director, upon receipt of information that an aspect of infectious waste management, within a publicly or privately-owned property, may present an imminent or substantial hazard to the health of persons or to the environment, may take such action as he determines necessary to protect the health of persons or the environment. The action the director may take may include, but is not limited to:
(1) entering the premises at any time where the infectious waste is located in order to assess what actions may be necessary;
(2) issuing or modifying an order directing the person responsible for the waste to take the steps necessary to prevent the act or eliminate the practice which constitutes the hazard;
(3) commencing an action enjoining the acts or practices. Upon a showing by the department that a person has engaged in the acts or practices, a permanent or temporary injunction, restraining order, or other order may be granted;
(4) inspecting and obtaining samples from a person of any wastes, including samples from a vehicle in which wastes are being transported, as well as samples of a container or label. If available, upon request, the department shall provide a sample of equal volume or weight to the owner, operator, or agent in charge of the waste. The department also shall provide the owner, operator, or agent in charge with a copy of the results of an analysis of the samples once the results have been evaluated properly by the department to determine their validity."
Commissioner changed to director
SECTION 1150. Section 44-93-130 of the 1976 Code is amended to read:
"Section 44-93-130. (A) The director may refuse to issue or renew a registration to transport infectious waste or a permit to operate a facility if he finds that within five years of the application for a registration or permit, the applicant has been:
(1) convicted of a crime involving moral turpitude by a court of law and all appeals have been exhausted;
(2) convicted pursuant to a violation of this chapter or any other laws of this State pertaining to solid or hazardous waste punishable as a felony; or
(3) adjudicated in contempt of a court order pertaining to the enforcement of a provision of this chapter or any other state or federal laws governing hazardous waste.
(B) The director may issue a registration or permit if the person has affirmatively demonstrated rehabilitation. The director, in making this determination, shall consider whether:
(1) the person has established formal controls and environmental auditing programs which would enhance compliance and prevent the occurrence of future violations; and
(2) the personal conduct of the person after the conviction or adjudication as it relates to the provisions and purposes of this chapter and any subsequent recommendations of other persons since rehabilitation."
Representative of board changed to director
SECTION 1151. Section 44-96-60(C)(4) of the 1976 Code, as added by Act 63 of 1991, is amended to read:
"(4) the Director of the Department of Commerce or his designee."
Department name changed
SECTION 1152. Section 44-96-120(A)(6) of the 1976 Code is amended to read:
"(6) start-up administrative costs of the Department of Revenue and Taxation in the amount of one hundred thousand dollars and the State Treasurer in the amount of fifty thousand dollars."
Department name changed
SECTION 1153. Section 44-96-140(E) of the 1976 Code, as added by Act 63 of 1991, is amended to read:
"(E) Not later than six months after this chapter is effective, and annually thereafter, the Department of Transportation shall submit a report to the Governor and to the General Assembly on the use of:
(1) compost as a substitute for regular soil amendment products in all highway projects;
(2) solid waste including, but not limited to, ground rubber from tires and fly ash or mixtures of them from coal-fired electrical facilities in road surfacing of subbase materials;
(3) solid waste including, but not limited to, glass aggregate, plastic, and fly ash in asphalt or concrete; and
(4) recycled mixed-plastic materials for guard rail posts, right-of-way fence posts, and sign supports."
Department name changed
SECTION 1154. Section 44-96-160 of the 1976 Code is amended to read:
"Section 44-96-160. (A) Twelve months after this chapter is effective, no person shall knowingly:
(1) place used oil in municipal solid waste, discard or otherwise dispose of used oil, except by delivery to a used oil collection facility, used oil energy recovery facility, oil recycling facility, or to an authorized agent for delivery to a used oil collection facility, used oil energy recovery facility, or oil recycling facility;
(2) dispose of used oil in a solid waste disposal facility unless such disposal is approved by the department;
(3) collect, transport, store, recycle, use or dispose of used oil in any manner which may endanger public health and welfare or the environment;
(4) discharge used oil into sewers, drainage systems, septic tanks, surface water or groundwater, or any other waters of this State, or onto the ground; or
(5) mix or commingle used oil with hazardous substances that make it unsuitable for recycling or beneficial use. Notwithstanding any other provision of law, any person who knowingly disposes of any used oil which has not been properly segregated or separated from other solid wastes by the generator is guilty of a violation of this subsection and shall be subject to a fine not to exceed two hundred dollars. This provision may be enforced by a state, county, or municipal law enforcement official, or by the department.
(B) The utilization of used oil for road oiling, dust control, weed abatement, or other similar uses which have the potential to cause harm to the environment is prohibited.
(C) The department shall encourage the voluntary establishment of used oil collection centers and recycling programs and provide technical assistance to persons who organize such programs. If a hazardous substance is mixed with used oil accepted at a volunteer used oil collection center, any costs for the proper disposal of this contaminated waste will be incurred by the Petroleum Fund, if no more than five gallons of used oil was accepted from any one person at any one time.
(D) All government agencies and private businesses that change motor oil for the public and major retail dealers of motor and lubricating oil are encouraged to serve as used oil collection centers. The Department of Transportation shall establish or contract for at least one used oil collection center in every county unless it can certify to the Office of Solid Waste Reduction and Recycling that a private used oil collection center is in operation in a county and is accepting up to five gallons of used oil from any member of the public. A retail dealer of motor oil who maintains a separate tank for a voluntary used oil collection center as approved by the department under this section is eligible for a payment from the South Carolina Department of Revenue and Taxation from fees collected pursuant to subsection (V) of five cents for every gallon of motor oil that is properly returned on a voluntary basis to a registered used oil transporter or permitted used oil recycling facility upon proper verification.
(E) Any person who maintains a used oil collection facility that receives a volume of used oil annually, which exceeds a limit to be determined by the department, must register with the department.
(F) A used oil collection center shall annually report to the department by a date to be determined by the department and shall indicate if it is accepting used oil from the public, the quantities of used oil collected in the previous year, and the total quantity of used oil handled in the previous year.
(G) No person may recover from the owner or operator of a used oil collection center any costs of response actions resulting from a release of either used oil or a hazardous substance from a used oil collection center if such used oil is:
(1) not mixed with any hazardous substance by the owner or operator of the used oil collection center;
(2) not knowingly accepted with any hazardous substances contained in it;
(3) transported from the used oil collection center by a registered transporter; or
(4) stored in a used oil collection center that is in compliance with this section. This subsection applies only to that portion of the used oil collection center utilized for the collection of used oil and does not apply if the owner or operator is grossly negligent in the operation of the public used oil collection center. Nothing in this section shall affect or modify in any way the obligations or liability of any person under any other provisions of state or federal law, including common law, for injury or damage resulting from the release of used oil or hazardous substances. For the purpose of this subsection, the owner or operator of a used oil collection center may presume that a quantity of no more than five gallons of used oil accepted from any member of the public is not mixed with a hazardous substance, if the owner or operator acts in good faith and in the belief the oil is generated from the individual's personal activity.
(H) Any motor, lubricating, or other oil offered for sale, at retail or at wholesale for direct retail sale, for use off the premises, must be clearly marked or labeled as containing a recyclable material which shall be disposed of only at a used oil collection center. A statement on a container of lubricating or other oil offered for sale is in compliance with this section if it contains the following statement: `Don't pollute. Conserve resources. Return used oil to collection centers.'
(I) Motor oil retailers shall post and maintain, at or near the point of sale, a durable and legible sign, not less than eleven inches by fifteen inches in size, informing the public of the importance of the proper collection and disposal of used oil and how and where used oil may be properly disposed.
(J) The department may inspect any place, building, or premises subject to subsections (H) and (I) and issue warnings and citations to any person who fails to comply with the requirements of those subsections. Failure to comply following a warning shall constitute a violation punishable by a fine not to exceed one hundred dollars per day. Each day on which an establishment fails to comply shall constitute a separate violation. The proceeds of any fine imposed pursuant to this subsection shall be remitted to the Solid Waste Management Trust Fund.
(K) The following persons shall register annually with the department pursuant to department regulations on forms prescribed in such regulations:
(1) any person who transports over public highways more than five hundred gallons of used oil weekly;
(2) any person who maintains a collection facility that receives more than six thousand gallons of used oil annually; and
(3) any facility that recycles more than six hundred gallons of used oil annually.
(L) The department shall require each registered person to submit by a date to be determined by the department an annual report which specifies the type and quantity of used oil transported, collected, and recycled during the preceding year. The department also shall require each registered person who transports or recycles used oil to maintain records which identify:
(1) the source of the materials transported or recycled;
(2) the quantity of materials received;
(3) the date of receipt; and
(4) the destination or the end use of the materials.
(M) The department shall require sample analyses of used oil at facilities of representative used oil transporters and at representative recycling facilities to determine the incidence of contamination of used oil with hazardous, toxic, or other harmful substances.
(N) The following entities are exempted from the requirements of subsection (K):
(1) an on-site burner which only burns a specification used oil generated by the burner, if the burning is done in compliance with any air permits issued by the department; or
(2) an electric utility which generates during its operation used oil that is then reclaimed, recycled, or refined by the electric utility for use in its operations.
(O) Any person who fails to register with the department as required by subsection (K), or to file the annual report required by subsection (L), is subject to a fine not to exceed three hundred dollars per day. Each day on which the person fails to comply shall constitute a separate violation. The proceeds of any fine imposed pursuant to this subsection shall be remitted to the Solid Waste Management Trust Fund.
(P) After the effective date of regulations promulgated by the department pursuant to this section, any person who transports over public highways more than five hundred gallons of used oil weekly must be a registered transporter.
(Q) The department shall promulgate regulations establishing a registration program for transporters of used oil, and shall issue, deny, or revoke registrations authorizing the holder to transport used oil. Registration requirements shall ensure that a used oil transporter is familiar with applicable regulations and used oil management procedures. The department shall promulgate regulations governing registration which shall include requirements for the following:
(1) registration and annual reporting;
(2) evidence of familiarity with laws and regulations governing used oil transportation; and
(3) proof of liability insurance or other means of financial responsibility for any liability which may be incurred in the transport of used oil.
(R) Each person who intends to operate, modify, or close a used oil recycling facility shall obtain an operation or closure permit from the department prior to operating, modifying, or closing the facility.
(S) Not later than eighteen months after this chapter is effective, the department shall develop a permitting system for used oil recycling facilities.
(T) Permits shall not be required under subsection (R) for the burning of used oil as a fuel, provided:
(1) a valid air permit, if required, issued by the department is in effect for the facility;
(2) the facility burns used oil in accordance with applicable state and local government regulations, and the requirements and conditions of its air permit; and
(3) the on specification used oil is burned in industrial furnaces and boilers and nonindustrial furnaces and boilers.
(U) No permit is required under this section for the use of used oil for the benefication or flotation of phosphate rock.
(V) (1) For sales made on or after November 1, 1991, every person making wholesale sales of motor oil or similar lubricants, and every person importing into this State ex-tax motor oil or similar lubricants, shall pay a fee on a monthly basis of eight cents for every gallon of motor oil or similar lubricants sold at wholesale or ex-tax motor oil or similar lubricants imported. As used herein, `ex-tax motor oil or similar lubricants' means motor oil or similar lubricants upon which the fee imposed herein has not been levied and which is not sold at wholesale in this State. The fee imposed herein shall be imposed only once with respect to each gallon of motor oil or similar lubricants. The South Carolina State Department of Revenue and Taxation shall administer, collect, and enforce this fee in the same manner the sales and use taxes are collected pursuant to Chapter 36 of Title 12. However, taxpayers are not required to make payments pursuant to Section 12-36-2600. In lieu of the discount allowed pursuant to Section 12-36-2610, the taxpayer may retain three percent of the total fees collected as an administrative collection allowance. This allowance applies whether or not the return is timely filed. A for hire motor carrier, as defined under this chapter, which purchases lubricating oils not for resale used in its fleet shall be exempt from the fee. The for hire motor carrier must:
(a) have a maintenance facility to service its own fleet and properly store waste oil for recycling collections;
(b) have reported to the Environmental Protection Agency, via Report No. EXP 17, the existence of storage tanks for waste oil storage;
(c) maintain records of the dispensing and servicing of lubrication oil in the fleet vehicles; and
(d) have a written contractual agreement with an approved waste oil hauler.
(2) The Department of Revenue and Taxation shall remit fees collected pursuant to this section to the Solid Waste Management Trust Fund, less payments made pursuant to subsection (D). The fees must be reserved in a separate account designated as the Petroleum Fund. The Petroleum Fund must be under the administration of the Office of Solid Waste Reduction and Recycling. The funds generated by the fees authorized by this section and set aside for the Petroleum Fund shall be used by the Office of Solid Waste Reduction and Recycling as follows:
(a) Two-fifths of the funds shall be used to establish incentive programs to encourage:
(1) individuals who change their own oil to return their used oil to used oil collection centers;
(2) the establishment and continued operation of collection centers which accept used oil, including a one-time rebate to retailers who maintain department approved used oil collection centers for equipment used in the used oil collection process, not to exceed five hundred dollars a location. The used oil collection center must maintain a separate tank for the collection of voluntarily returned used oil to be eligible for this rebate. This rebate must be distributed by the department upon approval of the collection center by the department and submittal of proof of purchase of the equipment.
(3) the establishment and continued operation of recycling facilities which prepare used oil for reuses or which utilize used oil in a manner that substitutes for a petroleum product made from new oil.
(b) Two-fifths of the funds shall be used to provide grants for local government projects that the office determines will encourage the collection, reuse, and proper disposal of used oil and similar lubricants. Local government projects may include one or more of the following programs or activities:
(1) curbside pickup of used oil containers by a local government or its designee;
(2) retrofitting of solid waste equipment to promote curbside pickup or disposal of used oil at used oil collection centers designated by the local government;
(3) establishment of publicly operated used oil collection centers at landfills or other public places; or
(4) providing of containers and other materials and supplies that the public can utilize in an environmentally sound manner to store used oil for pickup or return to a used oil collection center.
(c) One-fifth of the funds shall be used for public education and research, including, but not limited to, reuses, disposal, and development of markets for used oil and similar lubricants. The office may use funds set aside under subitem (a) of item (2) to contract for the development and implementation of incentive programs, and the office may use funds set aside under subitem (c) of item (2) to contract for the development and implementation of research and education programs. After the fee is imposed upon a distributor, the fee may not be imposed again upon any person who subsequently receives motor oil or similar lubricants from a distributor upon whom the fee already has been imposed. Motor oil or similar lubricants exported from this State in its original package or container shall be exempt from the fee imposed in this section. Any person purchasing motor oil or similar lubricants at wholesale in its original package or container and who exports such motor oil or similar lubricants from this State may certify in writing to the seller that the motor oil or similar lubricants will be exported, and such certification, if taken by the seller in good faith, will relieve the seller of the fee otherwise imposed. If the purchaser subsequently uses the motor oil or similar lubricants in this State, the purchaser shall be liable for the fee imposed and the purchaser's certification to the seller shall include an acknowledgment to that effect.
(W) The fee imposed under item (V) of this section shall be imposed until the unobligated principal balance of the Petroleum Fund equals or exceeds three million dollars. Based upon the amount of revenue received and the time frame in which the amount is collected, the Department of Revenue and Taxation is required to adjust the rate of the fee to reflect a full year's collection to produce the amount of revenue required in the fund. The increase or decrease in the fee made by the Department of Revenue and Taxation shall take effect for sales beginning on or after the first day of the third month following determination by the commission.
(X) The department shall promulgate regulations necessary to implement the provisions of this section. Such regulations may include the imposition of reasonable registration and permitting fees to assist in defraying the costs of the regulatory activities of the department required by this section.
(Y) All state agencies, all political subdivisions using state funds to procure items, and all persons contracting with such agency or political subdivision where such persons procure items with state funds shall procure used oil materials and products where practicable, subject to the provisions of Section 44-96-140(D).
(Z) Beginning February 28, 1993, and no later than February twenty-eighth each year thereafter, the Office of Solid Waste and Recycling shall submit to the Governor and to the General Assembly a report for the previous calendar year, including:
(1) the number of used oil collection sites available in each county to the general public;
(2) the number and location of used oil collection sites in each county receiving ongoing and start-up assistance from the Office of Solid Waste Reduction and Recycling;
(3) the amount of used oil collected in each county."
Department name changed
SECTION 1155. Section 44-96-170(L) and (M) of the 1976 Code is amended to read:
"(L) For sales made on or after November 1, 1991, there is imposed a fee of two dollars per new tire sold to the ultimate consumer, whether the tire is mounted by the seller or not. The wholesaler or retailer receiving new tires from unlicensed wholesalers shall be responsible for the fee imposed by this section. The Department of Revenue and Taxation shall administer, collect, and enforce the tire disposal fee in the same manner that the sales and use taxes are collected pursuant to Chapter 36 of Title 12. The fee imposed by this section must be remitted on a monthly basis. However, taxpayers are not required to make payments under Section 12-36-2600. In lieu of the discount allowed pursuant to Section 12-36-2610, the taxpayer may retain three percent of the total fees collected as an administrative collection allowance. This allowance applies whether or not the return is timely filed. The department shall deposit all fees collected to the credit of the State Treasurer. The State Treasurer shall establish a separate and distinct account from the state general fund. The State Treasurer shall distribute one and one-half dollars of each tire sold to each county based upon the population in each county according to the most recent United States Census. The county shall use these funds for collection and disposal of waste tires generated within that county. The remaining portion of the tire disposal fee is to be credited to the Solid Waste Management Trust Fund by the State Treasurer for the Waste Tire Grant Trust Fund, which is established under the administration of the South Carolina Department of Health and Environmental Control. The General Assembly shall review the waste tire disposal fee every five years.
(M) A wholesaler or retailer required to submit a fee under subsection (L) who delivers or arranges delivery of waste tires to a permitted waste tire disposal facility may apply for a refund of one dollar per tire delivered. In no case may a refund be approved for a number of tires delivered in excess of the number of new tires sold by the individual wholesaler or retailer. Verification must be provided as required by the South Carolina State Department of Revenue and Taxation. Any refund made pursuant to this subsection must be charged against the appropriate county's distributions under subsection (L)."
Department name changed
SECTION 1156. Subsection (O)(8) of Section 44-96-170 of the 1976 Code, as added by Act 63 of 1991, is amended to read:
"(8) the South Carolina Department of Natural Resources;"
Department name changed
SECTION 1157. Section 44-96-180(F) of the 1976 Code is amended to read:
"(F) For sales made on or after November 1, 1991, there is imposed a fee of two dollars per lead-acid battery sold to the ultimate consumer, whether the battery is installed by the seller or not. The retailer is to remit the fee to the Department of Revenue and Taxation on a monthly basis. The Department of Revenue and Taxation shall administer, collect, and enforce the lead-acid battery disposal fee in the same manner that the sales and use taxes are collected pursuant to Chapter 36 of Title 12. However, taxpayers are not required to make payments under Section 12-36-2600. In lieu of the discount allowed pursuant to Section 12-36-2610, the taxpayer may retain three percent of the total fees collected as an administrative collection allowance. This allowance applies whether or not the return is timely filed. The department shall deposit all fees collected to the credit of the State Treasurer. The State Treasurer is required to establish a separate and distinct account from the state general fund. The lead-acid battery disposal fee must be credited to the Solid Waste Management Trust Fund by the State Treasurer."
Department name changed
SECTION 1158. Section 44-96-200(E) of the 1976 Code is amended to read:
"(E) For sales made on or after November 1, 1991, there is imposed a fee of two dollars for each white good delivered by wholesalers to licensed retail merchants, jobbers, dealers, or other wholesalers for resale in this State. Retail merchants, jobbers, dealers, or other wholesalers receiving new white goods from unlicensed wholesalers shall be responsible for the fee imposed by this section. The wholesaler or retailer is to remit the fee to the Department of Revenue and Taxation on a monthly basis. The Department of Revenue and Taxation shall administer, collect, and enforce the white good disposal fee in the same manner that the sales and use taxes are collected pursuant to Chapter 36 of Title 12. However, taxpayers are not required to make payments under Section 12-36-2600. In lieu of the discount allowed pursuant to Section 12-36-2610, the taxpayer may retain three percent of the total fees collected as an administrative collection allowance. This allowance applies whether or not the return is timely filed. The department is required to deposit all fees collected to the credit of the State Treasurer. The State Treasurer is required to establish a separate and distinct account from the state general fund. The State Treasurer shall credit the white good disposal fee to the Solid Waste Management Trust Fund."
Department name changed
SECTION 1159. Section 44-96-220 of the 1976 Code is amended to read:
"Section 44-96-220. The provisions of Chapter 54 of Title 12 apply to the administration, collection, and enforcement of the fees imposed by this chapter as administered by the Department of Revenue and Taxation."
Commissioner changed to director
SECTION 1160. Section 44-96-250(B)(4) of the 1976 Code is amended to read:
"(4) `Director' means the Director of the South Carolina Department of Health and Environmental Control."
Commissioner changed to director
SECTION 1161. Section 44-96-280 of the 1976 Code is amended to read:
"Section 44-96-280. The director, upon receipt of information that any aspect of solid waste management within any publicly or privately owned facility, may present an imminent and substantial hazard to human health or safety or to the environment, and may take necessary action to protect human health or safety or the environment which may include, but is not limited to, the following:
(1) entering the solid waste management facility in order to assess what actions may be necessary;
(2) issuing or modifying an order directing the person responsible for facility operations to take appropriate action to prevent or eliminate the practice which is causing the hazard or a violation of any provision of this article or regulation promulgated pursuant to this article;
(3) commencing an action to enjoin any act or practice that is causing the hazard; and
(4) inspecting and obtaining samples from a person owning, operating, or supervising any solid waste management facility. However, the department shall provide, upon request, a sample of equal volume or weight to the person owning, operating, or supervising the facility. The department also shall provide such person with a copy of the results of the analysis of the samples after the results have been properly evaluated by the department to determine their validity."
Department name changed
SECTION 1162. Section 44-107-80 of the 1976 Code is amended to read:
"Section 44-107-80. Upon request, the Department of Alcohol and Other Drug Abuse Services shall provide technical assistance to any state agency to assist with the implementation of this chapter. Additionally, upon request, the names and addresses of contractors and grantees providing a drug-free workplace pursuant to this chapter must be provided to the department."
References revised
SECTION 1163. Section 46-13-60(2)(c) of the 1976 Code is amended to read:
"(c) If the deputy director finds the applicant qualified to use and supervise the use of pesticides in the classifications he has applied for, and if an applicant applying for a commercial applicator license files the evidence of financial responsibility required under Section 46-13-100, and if the applicant applying for a license to engage in aerial application of pesticides has met all of the requirements of the Federal Aviation Agency, the Division of Aeronautics of the Department of Commerce for the State, and any other applicable federal or state laws or regulations to operate the equipment described in the application, the deputy director shall issue a pesticide applicator's license limited to the classifications for which he is qualified, which shall expire at the end of the calendar year of issue unless it has been revoked or suspended prior thereto by the deputy director for cause. The deputy director may limit the license of the applicant to the use of certain areas, or to certain types of equipment if the applicant is only so qualified."
References revised
SECTION 1164. Section 46-13-150 of the 1976 Code is amended to read:
"Section 46-13-150. There is created a pesticide advisory committee consisting of five licensed commercial applicators residing in the State, one of whom must be licensed to operate horticultural ground equipment, one must be licensed to operate agricultural ground equipment, one must be licensed to operate aerial equipment, and two must be licensed for structural pest control; one entomologist in public service; one toxicologist in public service; one herbicide specialist in public service; two members from the agrichemical industry, one of whom must be a pesticide dealer; two producers of agricultural crops or products on which pesticides are applied or which may be affected by the application of pesticides; one representative of the South Carolina Department of Natural Resources; one plant pathologist in public service; one representative of the South Carolina State Forestry Commission; one representative of the South Carolina Department of Agriculture; one representative of the South Carolina Department of Health and Environmental Control; and two citizens from the State at large. The members must be residents of this State and must be appointed by the Governor on the recommendation of the following organizations:
(1) The South Carolina Aerial Applicators' Association shall recommend the pesticide applicator licensed to operate aerial equipment.
(2) The South Carolina Pest Control Operator's Association shall recommend the pesticide applicator licensed to operate horticultural ground equipment and two pesticide applicators licensed for structural pest control.
(3) The Vice President and Vice Provost of Agriculture and Natural Resources of Clemson University shall recommend the herbicide specialist in public service, the entomologist in public service, and the plant pathologist in public service.
(4) The members of the South Carolina Fertilizer and Agrichemical Association shall recommend the member from the agrichemical industry and the pesticide dealer.
(5) The South Carolina Farm Bureau shall recommend the two producers of agricultural crops or products on which pesticides are applied or which may be affected by the application of pesticides, and the commercial applicator licensed to operate agricultural ground equipment.
(6) The Director of the South Carolina Department of Natural Resources shall recommend the member from the South Carolina Department of Natural Resources.
(7) The State Forester shall recommend the member from the South Carolina State Forestry Commission.
(8) The Commissioner of Agriculture shall recommend the member from the South Carolina Department of Agriculture.
(9) The director of the Department of Health and Environmental Control shall recommend the member from that department.
(10) The administrator of the Department of Consumer Affairs shall recommend the two citizens at large.
Such members shall be appointed for terms of four years and may be appointed for successive terms; provided, that at the inception of this chapter the pesticide applicator licensed to operate aerial equipment, the entomologist in public service, the herbicide specialist, one of the two producers of agricultural crops, and the representative from the South Carolina Department of Agriculture shall be appointed for two years; the pesticide applicator licensed for structural pest control, one of the two pesticide applicators licensed to operate ground equipment, one of the two producers of agricultural crops, the pesticide dealer representing the South Carolina Pesticide Association, and the plant pathologist in public service shall be appointed for a period of three years; one of the two pesticide applicators licensed to operate ground equipment, the toxicologist in public service, the member of the agrichemical industry representing the South Carolina Pesticide Association, the representative of the South Carolina Department of Natural Resources, the representative from the South Carolina Commission of Forestry and the representative from the Department of Health and Environmental Control shall be appointed for a period of four years. All subsequent terms for appointment to such committee shall be for a period of four years.
The appointing organizations shall have the authority to recommend the removal of the appointees prior to the expiration of their term of appointment for cause.
Upon the death, resignation, or removal for cause of any member of the committee, such vacancy shall be filled within thirty days of its creation for the remainder of its term in the manner herein prescribed for appointment to the committee.
The committee shall elect one of its members chairman. The members of the committee shall meet at such time and at such place as shall be specified by the call of the Director, Chairman, or a majority of the committee.
The committee shall advise the Director on any or all problems relating to the use and application of pesticides. This may include pest control problems, environmental or health problems related to pesticide use, and review of needed legislation, regulations and agency programs."
References revised
SECTION 1165. Section 46-51-20 of the 1976 Code is amended to read:
"Section 46-51-20. Within ninety days after the creation of the office the facilitator shall meet with the director of the Department of Health and Environmental Control, the director of the South Carolina Department of Natural Resources and the executive director of the State Budget and Control Board to establish one application form which must be used by all the permitting agencies when a potential aquaculturist is seeking permits, licenses, and certifications to begin an aquaculture operation. The permit facilitator shall recognize the value and integrity of the permitting programs of each of the state's regulatory agencies listed above and seek to maintain the division of authority."
References revised
SECTION 1166. Section 47-3-310 of the 1976 Code is amended to read:
"Section 47-3-310. On game management areas, state-owned property and property of private landowners and leaseholders, at the request of such landowners and leaseholders, specially trained enforcement officers of the Natural Resources Enforcement Division of the Department of Natural Resources may enter on such areas and property for the purpose of investigating dogs running at large on the property. If the dogs are determined to be feral dogs (a dog which has reverted to a wild state) and are a threat to the lives or health of livestock, wildlife or humans, the enforcement officers may remove the feral dog from the property or dispose of it in the most humane manner as determined by the department."
References revised
SECTION 1167. Section 47-3-320 of the 1976 Code is amended to read:
"Section 47-3-320. Two enforcement officers of the Natural Resources Enforcement Division of the Department of Natural Resources from each of the state's twenty-eight law enforcement units shall be trained by the Department in the identification, capture and humane disposal of feral dogs and these officers shall have the responsibility of answering all complaints concerning feral dogs within the geographical boundaries of their respective law enforcement units. Such enforcement officers shall be held harmless of any personal liability that may occur during the lawful execution of their duties under this act except in case of gross negligence."
References revised
SECTION 1168. Section 47-3-420 of the 1976 Code is amended to read:
"Section 47-3-420. Only the following methods of euthanasia shall be used to kill dogs and cats impounded in animal shelters and the procedure applicable to the method selected shall be strictly followed:
1. Barbituric Acid Derivatives:
(a) Intravenous or intracardial injection of a lethal solution,
(b) Intraperitoneal injection of a lethal solution when location of an injection into the vein is difficult or impossible,
(c) Oral ingestion of powdered barbituric acid derivatives in capsules mixed with food or by manual administration.
2. Euthanasia Solution T-61 or other therapeutically equivalent solution approved for animal euthanasia by the American Veterinary Medicine Association and the Food and Drug Administration: Intravenous or intracardial injection of these solutions specifically according to the directions of the manufacturers for intravenous and intracardial injections. The solutions shall not be administered via intraperitoneal, intrathoracic, or intrapulmonary routes, nor in any other manner except as provided above. Administration of injections shall be done only by a licensed veterinarian or by a person trained for this purpose by a licensed veterinarian. All injections shall be administered using an undamaged hypodermic needle of a size suitable for the size and species of animal.
3. Carbon Monoxide Gas: Dogs and cats, except animals under eight weeks of age, may be killed by carbon monoxide gas administered in a tightly enclosed chamber. The chamber shall be equipped with:
(a) Internal lighting and a window providing direct visual surveillance of the collapse and death of any animal within the chamber.
(b) The gas concentration process must be adequate to achieve a carbon monoxide gas concentration throughout the chamber of at least five percent within five minutes after any animal is placed in the chamber. If chemical generation through the use of sodium formate and sulfuric acid is used, the generated carbon monoxide gas must have all irritating acid vapors filtered out by passing it through a ten percent solution of sodium hydroxide prior to its entry into the carbon monoxide chamber.
(c) If carbon monoxide gas generation is by combustion of gasoline in an engine, all of the following shall be satisfied:
(1) The engine shall be maintained in good operating condition.
(2) The engine shall be operated only at idling speed with the richest fuel-air mixture the choke permits.
(3) Prior to entry into the chamber, the exhaust gas shall be cooled so that it does not exceed 115 Fahrenheit.
(4) The chamber shall be equipped with accurate temperature gauges monitored closely by attendants or shall be equipped with an alarm system to assure that the internal temperature of the chamber does not exceed 90° Fahrenheit.
(5) Prior to entry into the chamber, the exhaust gas shall be first passed through an adequate water-gravel filtration process and subsequently through a cloth filtration process to remove irritants and carbon particles.
(6) The noise level from the engine shall not exceed 70 dBA when measured within the chamber.
(7) A flexible tubing or pipe at least twenty-four inches in length shall be placed between the chamber and the engine to minimize vibrations.
(8) The unit shall include a means for exhausting or bypassing internal combustion engine gas during the period of engine warm-up.
(9) The unit shall include an exhaust fan connected by a gas-tight duct to the outdoors capable of completely evacuating the gas from the chamber before it is opened after each use, except that this provision shall not apply to chambers located out-of-doors.
(d) Animals shall be left in the chamber for a period of no less than fifteen minutes from the time the gas concentration throughout the chamber reaches five percent.
4. Nitrogen Gas: Dogs and cats, except animals under four months of age may be killed by nitrogen gas provided:
(a) The nitrogen gas cabinet is equipped with a viewport providing direct visual surveillance of the collapse and death of any animal within the cabinet, and internal lighting unless the cabinet is equipped with a clear door.
(b) Every animal is placed in an individual container or compartment of the cabinet.
(c) The oxygen concentration within the cabinet is reduced to 1.5 percent or less by displacing air within the cabinet with nitrogen.
(d) The 1.5 percent reduction in oxygen concentration is reached within 45-50 seconds after the beginning of the cycle of operation and the animals are left within the cabinet at that concentration not less than ten minutes.
(e) Pregnant animals are left in the cabinet not less than twenty minutes.
In all instances where the carbon monoxide and nitrogen chambers are used:
(a) Neither incompatible or hostile animals, nor animals of different species shall be placed in any chamber simultaneously.
(b) Every chamber must be thoroughly cleaned after the completion of each full cycle. No live animals shall be placed in the chamber with dead animals.
(c) All animals must be examined by a veterinarian or other qualified person to ensure they are dead upon removal from chamber.
(d) All chambers shall be inspected quarterly by an independent qualified technician who is thoroughly knowledgeable with the operation and maintenance of the particular euthanasia chamber being used.
(e) An operational guide and maintenance instructions shall be displayed in the room with the euthanasia chamber.
5. Shooting: Shooting shall be used as a means of euthanasia only in an emergency situation to prevent extreme suffering or in which the safety of people or other animal life is threatened or where it is deemed necessary by the South Carolina Department of Natural Resources to eliminate or control the population of feral animals.
6. Inhalant Anesthetics: The animal to be killed shall be less than eight weeks old.
(a) The animal to be killed shall be placed in a cage. The cage shall be placed in an airtight chamber or in a transparent plastic bag which can be tightly sealed following introduction of the inhalant anesthetic.
(b) When using ether, halothane, fluothane, halocarbon, metofane or penthrane a veterinarian shall be consulted as to the amount of inhalant anesthetic to be used in relation to the size of the container. When using chloroform a two percent concentration within the chamber is required. To obtain a two percent concentration use a formula of 1.9 cubic centimeters (.068 ounce) per cubic foot of air space within the container or chamber.
(c) The inhalant anesthetic shall be placed on a piece of gauze or ball of cotton and inserted into the chamber or bag in such a position that the animal shall not be able to come in direct contact with it.
(d) The lid of the chamber or the top of the plastic bag shall be left open until the animal is anesthetized. When no movement is seen, the container shall be tightly sealed.
(e) The animal shall remain in the chamber or bag for a period of not less than twenty minutes.
(f) The room in which the inhalant anesthetic is administered shall have forced ventilation to remove all fumes after each use.
(g) The animal shall remain in the chamber or bag until rigor mortis has occurred."
References revised
SECTION 1169. Section 47-3-510 of the 1976 Code is amended to read:
"Section 47-3-510. The owner of any dog or kennel may, upon payment of a fee to be determined by the South Carolina Department of Natural Resources (department), not to exceed five dollars a dog or twenty dollars a kennel, have his dog registered by the department and the registration number tattooed in either of the dog's ears or on any other clearly visible part of the body that would be considered most suitable for the respective species of dog. The department shall maintain records of the names and addresses of the owners of registered kennels."
References revised
SECTION 1170. Section 47-3-550 of the 1976 Code is amended to read:
"Section 47-3-550. The South Carolina Department of Natural Resources may promulgate regulations to carry out the provisions of this chapter."
References revised
SECTION 1171. Section 47-5-30 of the 1976 Code is amended to read:
"Section 47-5-30. The Department of Health and Environmental Control may employ a licensed doctor of veterinary medicine to serve as public health veterinarian of the Department of Health and Environmental Control. He shall aid county health departments and rabies control officers in the administration and enforcement of the provisions of this chapter, including the supervision of forms of certificates and tags to effectuate the inoculation program herein provided. He shall aid in the preparation of literature describing the symptoms of rabies and preventive measures to be taken against the spread of rabies, such information to be distributed to pet owners at the time of inoculation of animals, and shall otherwise promote efficiency in the program of inoculation and rabies control herein provided. In addition to the above, he shall aid administratively in the prevention and control of all diseases communicable from animal to man which may become prevalent in this State and in combatting such disease, in cooperation with Department of Natural Resources, the extension service of Clemson University, and any other state or federal agencies engaged in similar efforts to combat diseases communicable from animal to man."
References revised
SECTION 1172. Section 48-1-85(C) of the 1976 Code is amended to read:
"(C) When an owner of a houseboat having a marine toilet applies to the Department of Natural Resources for a certificate of title pursuant to Section 50-23-20, he shall certify in the application that the toilet discharges only into a holding tank."
References revised
SECTION 1173. Section 48-1-110 of the 1976 Code is amended to read:
"Section 48-1-110. (a) It shall be unlawful for any person, until plans therefor have been submitted to and approved by the department and a written permit therefor shall have been granted to:
(1) Construct or install a disposal system or source;
(2) Make any change in, addition to or extension of any existing disposal system or part thereof that would materially alter the method or the effect of treating or disposing of the sewage, industrial waste or other wastes;
(3) Operate such new disposal systems or new source, or any existing disposal system or source;
(4) Increase the load through existing outlets of sewage, industrial waste or other wastes into the waters of the State.
(b) The director of Health and Environmental Control shall classify all public wastewater treatment plants, giving due regard to size, types of work, character, and volume of waste to be treated, and the use and nature of the water resources receiving the plant effluent. Plants may be classified in a group higher than indicated at the discretion of the classifying officer by reason of the incorporation in the plant of complex features which cause the plant to be more difficult to operate than usual or by reason of a waste unusually difficult to treat, or by reason of conditions of flow or use of the receiving waters requiring an unusually high degree of plant operation control or for combinations of such conditions or circumstances. The classification is based on the following groups:
(1) For biological wastewater treatment plants: Group I-B. All wastewater treatment plants which include one or more of the following units: primary settling, chlorination, sludge removal, imhoff tanks, sand filters, sludge drying beds, land spraying, grinding, screening, oxidation, and stabilization ponds. Group II-B. All wastewater treatment plants which include one or more of the units listed in Group I-B and, in addition, one or more of the following units: sludge digestion, aerated lagoon, and sludge thickeners. Group III-B. All wastewater treatment plants which include one or more of the units listed in Groups I-B and II-B and, in addition, one or more of the following: trickling filters, secondary settling, chemical treatment, vacuum filters, sludge elutriation, sludge incinerator, wet oxidation process, contact aeration, and activated sludge (either conventional, modified, or high rate processes). Group IV-B. All wastewater treatment plants which include one or more of the units listed in Groups I-B, II-B, and III-B and, in addition, treat waste having a raw five-day biochemical oxygen demand of five thousand pounds a day or more.
(2) Effective July 1, 1987, for physical-chemical wastewater treatment plants: Group I-P/C. All wastewater treatment plants which include one or more of the following units: primary settling, equalization, pH control, and oil skimming. Group II-P/C. All wastewater treatment plants which include one or more of the units listed in Group I-P/C and, in addition, one or more of the following units: sludge storage, dissolved air flotation, and clarification. Group III-P/C. All wastewater treatment plants which include one or more of the units listed in Groups I-P/C and II-P/C and, in addition, one or more of the following: oxidation/reduction reactions, cyanide destruction, metals precipitation, sludge dewatering, and air stripping. Group IV-P/C. All wastewater treatment plants which include one or more of the units listed in Groups I-P/C, II-P/C, and III-P/C and, in addition, one or more of the following: membrane technology, ion exchange, tertiary chemicals, and electrochemistry.
(c) It shall be unlawful for any person or municipal corporation to operate a public wastewater treatment plant unless the operator-in-charge holds a valid certificate of registration issued by the Board of Certification of Environmental Systems Operators in a grade corresponding to the classification of the public wastewater treatment plant supervised by him, except as hereinafter provided.
(d) It shall be unlawful for any person to operate an approved waste disposal facility in violation of the conditions of the permit to construct or the permit to discharge.
(e) It shall be unlawful for any person, directly or indirectly, negligently or willfully, to discharge any air contaminant or other substance in the ambient air that shall cause an undesirable level."
Department of Natural Resources and its board and director created
SECTION 1174. Title 48 of the 1976 Code is amended by adding:
"CHAPTER 4
Department of Natural Resources
Section 48-4-10. The South Carolina Department of Natural Resources is created to administer and enforce the laws of this State relating to wildlife, marine resources, and natural resources, and other laws specifically assigned to it. The department shall be comprised of a Natural Resources Enforcement Division, a Wildlife and Freshwater Fish Division, a Marine Resources Division, a Water Resources Division, a Land Resources and Conservation Districts Division, and a State Geologist and Geological Mapping Division. Each division of the department shall have such functions and powers as provided by law.
All functions, powers, and duties provided by law to the South Carolina Wildlife and Marine Resources Department, the Geological Mapping Division of the Budget and Control Board, to include the State Geologist, and the South Carolina Migratory Waterfowl Committee are hereby transferred to the Department of Natural Resources. All non-regulatory functions, powers, and duties provided by law to the South Carolina Water Resources Commission and the State Land Resources Conservation Commission are hereby transferred to the Department of Natural Resources. All rules, regulations, standards, orders, or other actions of these entities shall remain in effect unless specifically changed or voided by the department in accordance with the Administrative Procedures Act.
All divisions shall be directly accountable to and subject to the Department of Natural Resources.
The Wildlife and Marine Resources Commission, the Land Resources Conservation Commission, and the Water Resources Commission are abolished.
Section 48-4-20. For the purposes of this chapter:
(1) `Board' means the governing body of the department.
(2) `Department' means the South Carolina Department of Natural Resources.
(3) `Director' or `Executive Director' means the administrative head of the department, appointed by the board.
Section 48-4-30. The department shall be governed by a board consisting of seven non-salaried board members. Board members of the former Department of Wildlife and Marine Resources shall serve as board members for the Department of Natural Resources until their terms expire and their successors are appointed and qualify. All board members shall be appointed by the Governor with the advice and consent of the Senate. One member shall be appointed from each congressional district of the state and one shall be appointed from the state at-large. In making appointments, race, gender, and other demographic factors should be considered to assure nondiscrimination, inclusion, and representation to the greatest extent possible of all segments of the population of the State; however, consideration of these factors in making an appointment in no way creates a cause of action or basis for an employee grievance for a person appointed or for a person who fails to be appointed. Board members must possess sound moral character, superior knowledge in the fields of wildlife, marine, and natural resource management, and proven administrative ability.
The Governor may remove any board member pursuant to the provisions of Section 1-3-240.
Terms of the members shall be for four years and until their successors are appointed and qualify. If a vacancy occurs when the General Assembly is not in session, it must be filled by the Governor's appointment for the unexpired term, subject to confirmation by the Senate at the next session of the General Assembly.
Each board member, within thirty days after notice of appointment and before taking office, shall take and file with the Secretary of State the oath of office prescribed by the State Constitution.
One of the members of the board shall be designated by the Governor to serve as chairman.
Section 48-4-40. The board members shall receive reimbursement for their expenses incurred while engaged in the work of the board as provided by law for state boards and commissions.
Section 48-4-50. The board shall be vested with the duty and authority to oversee, manage, and control the operation, administration, and organization of the department subject only to the laws of this State and the United States.
Section 48-4-60. The board shall appoint a director to serve at its pleasure who shall be the administrative head of the department. The director must carry out the policies of the board and administer the affairs of the department. The director may exercise all powers belonging to the board within the guidelines and policies established by the board. The director shall manage the administration and organization of the department and may appoint such assistants or deputies as the director considers necessary. The director may hire such employees as the director considers necessary for the proper administration of the affairs of the department. The director must prescribe the duties, powers, and functions of all assistants, deputies, and employees of the department.
Section 48-4-70. The board shall:
(1) hold meetings, as considered necessary by the chairman, with a majority of the board members constituting a quorum. The board may hold meetings, transact business, or conduct investigations at any place necessary; however, its primary office is in Columbia;
(2) formulate and recommend legislation to enhance uniformity, enforcement, and administration of the wildlife, marine, and natural resource laws;
(3) make an annual report to the General Assembly on all matters relating to its action;
(4) require those of its officers, agents, and employees it designates to give bond for the faithful performance of their duties in the sum and with the sureties it determines, and all premiums on the bonds must be paid by the board;
(5) pay travel expenses; and purchase or lease all necessary facilities, equipment, books, periodicals, and supplies for the performance of its duties; and
(6) exercise and perform other powers and duties as granted to it or imposed upon it by law.
Section 48-4-80. The board may:
(1) make rules and promulgate regulations, not inconsistent with law, to aid in the performance of its duties. The board may prescribe the extent, if any, to which these rules and regulations must be applied without retroactive effect.
(2) exercise all authority granted to it under the laws and regulations relating to wildlife, marine and natural resources.
(3) conduct such hearings as may be required by law."
Definitions
SECTION 1175. Chapter 9 of Title 48 of the 1976 Code is amended by adding:
"Section 48-9-15. As used in this chapter:
(1) `Department' means the Department of Natural Resources.
(2) `Division' means Land Resources and Conservation Districts Division of the Department of Natural Resources.
(3) `Director' means the administrative head of the department appointed by the board."
Definitions deleted
SECTION 1176. Section 48-9-30 of the 1976 Code is amended by deleting item (3) which reads:
"(3) `Commission' or `State Land Resources Conservation Commission' means the agency created in Section 48-9-210;'"
Commission changed to department; name revised
SECTION 1177. Section 48-9-40 of the 1976 Code is amended to read:
"Section 48-9-40. The name of the State Land Resources Conservation Commission is hereby changed to the Department of Natural Resources."
Accountability of the Land Resources and Conservation Districts Division
SECTION 1178. Chapter 9 of Title 48 of the 1976 Code is amended by adding:
"Section 48-9-45. The Land Resources and Conservation Districts Division, shall be directly accountable to and subject to the director of the department."
Department name revised
SECTION 1179. Section 48-9-230 of the 1976 Code is amended to read:
"Section 48-9-230. The following shall serve ex officio in an advisory capacity to the State Land Resources Conservation Commission: The Director of the State Agricultural Extension Service, the Director of the South Carolina Agricultural Experiment Station, the president of Clemson University, the State Forester, the State Supervisor of the State Department of Vocational Agriculture, the Director of the Division of Game of the South Carolina Wildlife and Marine Resources Department, the Director of the Department of Commerce, the Commissioner of Agriculture and, with the concurrence of the Secretary of the United States Department of Agriculture, the State Conservationist of the Soil and Water Conservation Service, the chairman of the Purchasing and Marketing Administration State Committee and the Director of the Farmers' Home Administration."
Commission changed to division; name revised
SECTION 1180. Section 48-9-230 of the 1976 Code is amended to read:
"Section 48-9-230. The following shall serve ex officio in an advisory capacity to the Land Resources and Conservation Districts Division of the Department of Natural Resources: The Director of the State Agricultural Extension Service, the Director of the South Carolina Agricultural Experiment Station, the president of Clemson University, the State Forester, the State Supervisor of the State Department of Vocational Agriculture, the Director of the Department of Commerce, the Commissioner of Agriculture and, with the concurrence of the Secretary of the United States Department of Agriculture, the State Conservationist of the Soil and Water Conservation Service, the chairman of the Purchasing and Marketing Administration State Committee and the Director of the Farmers' Home Administration."
Commission changed to department; name revised
SECTION 1181. Section 48-9-260 of the 1976 Code is amended to read:
"Section 48-9-260. The Department of Natural Resources may employ an administrative officer and such technical experts and other agents and employees, permanent and temporary, as it may require and shall determine their qualifications, duties and compensation. The department may call upon the Attorney General for such legal services as it may require or may employ its own counsel and legal staff."
Commission changed to department
SECTION 1182. Section 48-9-270 of the 1976 Code is amended to read:
"Section 48-9-270. The Department of Natural Resources shall adopt a seal which shall be judicially noticed and may perform such acts, hold such public hearings and promulgate such rules and regulations as may be necessary for the execution of its functions under this chapter."
Commission changed to department
SECTION 1183. Section 48-9-280 of the 1976 Code is amended to read:
"Section 48-9-280. The Department of Natural Resources shall provide for the execution of surety bonds for all employees and officers who shall be entrusted with funds or property, shall provide for the keeping of a full and accurate record of all its proceedings and activities and of all resolutions, regulations and orders issued or adopted and shall provide for an annual audit of the accounts of receipts and disbursements."
Commission changed to department
SECTION 1184. Section 48-9-290 of the 1976 Code is amended to read:
"Section 48-9-290. In addition to the duties and powers otherwise conferred upon the Department of Natural Resources, it shall have the following duties and powers:
(1) To offer such assistance as may be appropriate to the commissioners of soil and water conservation districts, organized as provided in this chapter, in the carrying out of any of their powers and programs;
(2) To keep the commissioners of each of the several districts organized under the provisions of this chapter informed of the activities and experience of all other districts organized under this chapter and to facilitate an interchange of advice and experience between such districts and cooperation between them;
(3) To coordinate the programs of the several soil and water conservation districts organized under this chapter so far as this may be done by advice and consultation;
(4) To secure the cooperation and assistance of the United States and any of its agencies and of agencies and counties of this State, in the work of such districts;
(5) To disseminate information throughout the State concerning the activities and programs of the soil and water conservation districts organized hereunder and to encourage the information of such districts in areas where their organization is desirable;
(6) To receive gifts, appropriations, materials, equipment, lands and facilities and to manage, operate and disburse them for the benefit of the soil and water conservation districts;
(7) To coordinate the development of comprehensive conservation plans for environmental improvement on all lands owned or controlled by the State;
(8) To coordinate the development of a statewide landscape inventory and formulate guidelines for assisting local conservation districts, municipalities, counties, and other groups in implementing landscape and beautification programs;
(9) To coordinate the development of a comprehensive plan for implementation of the standard soil survey information and to prepare guidelines for local conservation districts, counties, municipalities and other agencies of State and local government in the use of soil survey data for land use planning, development and conservation;
(10) To coordinate the development of a statewide flood plain lands area inventory and to formulate guidelines for the conservation, protection and use of flood plain lands, excluding tidelands and marshlands;
(11) To coordinate and assist local conservation districts, counties, and municipalities in developing policies and procedures for an adequate erosion and sediment control program; and engage in an educational informational program to acquaint municipalities, conservation districts, counties, and developers with sedimentation control management measures applicable to their activities, and familiarize these people with the program of the district;
(12) To coordinate the development of a statewide irrigable land inventory and to formulate guidelines for the conservation, protection and use of such lands;
(13) To coordinate the development of a statewide inventory of the availability of rural lands for recreational uses, and to formulate guidelines for the conservation, protection and use of such lands; and
(14) To coordinate the development of conservation guidelines for incorporation into local and statewide land use plans."
Commission changed to department
SECTION 1185. Section 48-9-300 of the 1976 Code is amended to read:
"Section 48-9-300. The department may delegate to one or more agents or employees such powers and duties as it may deem proper and it may furnish information as well as call upon any or all State or local agencies for cooperation in carrying out the provisions of this chapter."
Commission changed to department
SECTION 1186. Section 48-9-310 of the 1976 Code is amended to read:
"Section 48-9-310. On or before the first day of November, annually, the department shall transmit to the Governor, on official blanks to be furnished by him, an estimate, in itemized form, showing the amount of expenditure requirements for the ensuing fiscal year. The estimates submitted shall state, in addition to the requirements of existing law, the following information:
(1) The number and acreage of districts in existence or in process of organization, together with an estimate of the number and probable acreages of the districts which may be organized during the ensuing fiscal year;
(2) A statement of the balance of funds, if any, available to the department and to the districts; and
(3) The estimates of the department as to the sums needed for its administrative and other expenses and for allocation among the several districts during the ensuing fiscal year.
The department may require the commissioners of the respective soil and water conservation districts to submit to it such statements, estimates, budgets and other information as it may deem necessary for the purposes of this section."
Commission changed to department
SECTION 1187. Section 48-9-320 of the 1976 Code is amended to read:
"Section 48-9-320. Unless otherwise provided by law all moneys which may from time to time be appropriated out of the State Treasury for the use of soil and water conservation districts shall be available to pay the administrative and other expenses of such districts and shall be allocated by the department among the districts already organized and to be organized during the fiscal year for which such appropriation is made. Such allocation shall be fair, reasonable and in the public interest, giving due consideration to the greater relative expense of carrying on operations within the particular districts because of such factors as unusual topography, unusual severity of erosion, special difficulty of carrying on operations, special volume of work to be done and the special importance of instituting erosion control and soil and water conservation operations immediately. In making allocations of such moneys, the department shall reserve an amount estimated by it to be adequate to enable it to make subsequent allocations in accordance with the provisions of this section from time to time among districts which may be organized within the current fiscal year after the initial allocations are made. All appropriations made for the purpose of this chapter shall be disbursed by the State Treasurer on warrants approved and signed by the department."
Commission changed to department
SECTION 1188. Article 5, Chapter 9, Title 48 of the 1976 Code is amended to read:
"Article 5
Creation of Soil and Water Conservation Districts
Section 48-9-510. Any twenty-five owners of land lying within the limits of territory proposed to be organized into a soil and water conservation district may file a petition with the department asking that a soil and water conservation district be organized to function in the territory described in the petition.
Section 48-9-520. Any such petition shall set forth:
(1) The proposed name of the district;
(2) That there is need, in the interest of the public health, safety and welfare, for a soil and water conservation district to function in the territory described in the petition;
(3) A description of the territory proposed to be organized as a district, which shall not be required to be given by metes and bounds or by legal subdivisions but shall be deemed sufficient if generally accurate; and
(4) Requests
(a) that the department duly define the boundaries for the district,
(b) that a referendum be held within the territory so defined on the question of the creation of a soil and water conservation district in such territory and
(c) that the department determine that such a district be created.
Section 48-9-530. When more than one petition is filed covering parts of the same territory the department may consolidate all or any of such petitions.
Section 48-9-540. Within thirty days after such a petition has been filed with the department it shall cause due notice to be given of a proposed hearing upon the question of the desirability and necessity, in the interest of the public health, safety and welfare, of the creation of such district, upon the question of the appropriate boundaries to be assigned to such district, upon the propriety of the petition and other proceedings taken under this chapter and upon all questions relevant to such inquiries. All owners and occupiers of land within the limits of the territory described in the petition and of the lands within the limits of the territory considered for addition to such described territory and all other interested parties shall have the right to attend such hearings and to be heard. If it shall appear upon the hearing that it may be desirable to include within the proposed district territory outside of the area within which due notice of the hearing has been given, the hearing shall be adjourned and due notice of a further shall be given throughout the entire area considered for inclusion in the district and such further hearing held.
Section 48-9-550. If the department shall determine after such hearing, after due consideration of the facts presented at such hearing and such other relevant facts and information as may be available, that there is no need for a soil and water conservation district to function in the territory considered at the hearing, it shall make and record such determination and shall deny the petition. After six months shall have expired from the date of the denial of any such petition, subsequent petitions covering the same or substantially the same territory may be filed as provided in Section 48-9-510 and new hearings held and determinations made thereon.
Section 48-9-560. After such hearing, if the department shall determine, upon the facts presented at such hearing and upon such other relevant facts and information as may be available, that there is need, in the interest of the public health, safety and welfare, for a soil and water conservation district to function in the territory considered at the hearing, it shall make and record such determination and shall define, by metes and bounds or by legal subdivisions, the boundaries of such district. In making such determination and in defining such boundaries the department shall give due weight and consideration to the topography of the area considered and of the State, the composition of soils therein, the distribution of erosion, the prevailing land-use practices, the desirability and necessity of including within the boundaries the particular lands under consideration and the benefits such lands may receive from being included within such boundaries, the relation of the proposed area to existing watersheds and agricultural regions and to other soil and water conservation districts already organized or proposed for organization under the provisions of this chapter and such other physical, geographical and economic factors as are relevant, having due regard to the legislative determinations set forth in Section 48-9-20. The territory to be included within such boundaries need not be contiguous.
Section 48-9-570. The boundaries of any such district shall include the territory as determined by the department as provided in Section 48-9-560, but in no event shall they include any area included within the boundaries of another soil and water conservation district organized under the provisions of this chapter.
Section 48-9-580. After the department has made and recorded a determination that there is need, in the interest of the public health, safety and welfare, for the organization of a district in a particular territory and has defined the boundaries thereof, it shall, within a reasonable time after entry of the finding that there is need for the organization of the proposed district and the determination of the boundaries thereof hold a referendum within the proposed district upon the proposition of the creation of the district and cause due notice of such referendum to be given. The question shall be submitted by ballots upon which the words `For creation of a soil and water conservation district of the lands below described and lying in the county(ies) of (and )' and `Against creation of a soil and water conservation district of the lands below described and lying in the county(ies) of (and )' shall appear with a square before each proposition and a direction to insert an X mark in the square before one or the other of said propositions as the voter may favor or oppose creation of such district. The ballot shall set forth the boundaries of such proposed district as determined by the department. All owners of lands lying within the boundaries of the territory, as determined by the department, shall be eligible to vote in such referendum. Only such landowners shall be eligible to vote.
Section 48-9-590. The department shall pay all expenses for the issuance of such notices and the conduct of such hearings and referenda and shall supervise the conduct of such hearings and referenda. It shall issue appropriate regulations governing the conduct of such hearings and referenda and providing for the registration prior to the date of the referendum of all eligible voters or prescribing some other appropriate procedure for the determination of those eligible as voters in such referendum. No informalities in the conduct of such referendum or in any matters relating thereto shall invalidate the referendum or the result thereof if notice thereof shall have been given substantially as provided in Section 48-9-540 and such referendum shall have been fairly conducted.
Section 48-9-600. The department shall publish the result of such referendum and shall thereafter consider and determine whether the operation of the district within the defined boundaries is administratively practicable and feasible. If the department shall determine that the operation of such district is not administratively practicable and feasible it shall record such determination and deny the petition. If the department shall determine that the operation of such district is administratively practicable and feasible it shall record such determination and shall proceed with the organization of the district in the manner provided in Sections 48-9-610 to 48-9-630. In making such determination the department shall give due regard and weight to the attitudes of the owners and occupiers of lands lying within the defined boundaries, the number of landowners eligible to vote in such referendum who shall have voted, the proportion of the votes cast in such referendum in favor of the creation of the district to the total number of votes cast, the approximate wealth and income of the landowners and occupiers of the proposed district, the probable expense of carrying on erosion-control operations within such district and such other economic and social factors as may be relevant to such determination, having due regard to the legislative determinations set forth in Section 48-9-20. The department shall not have authority to determine that the operation of the proposed district within the defined boundaries is administratively practicable and feasible unless at least a majority of the votes cast in the referendum upon the proposition of creation of the district shall have been cast in favor of the creation of such district.
Section 48-9-610. If the department shall determine that the operation of the proposed district within the defined boundaries is administratively practicable and feasible it shall appoint two commissioners to act with the three commissioners elected as provided in Article 11 of this chapter as the governing body of the district.
Section 48-9-620. The two appointed commissioners shall present to the Secretary of State an application signed by them, which shall set forth (and such application need contain no detail other than the mere recitals) that:
(1) A petition for the creation of the district was filed with the department pursuant to the provisions of this chapter and that the proceedings specified in this chapter were taken pursuant to such petition;
(2) The application is being filed in order to complete the organization of the district under this chapter and the department has appointed the signers as commissioners;
(3) The name and official residence of each of the commissioners, together with a certified copy of the appointments evidencing their right to office;
(4) The term of office of each of the commissioners;
(5) The name which is proposed for the district; and
(6) The location of the principal office of the commissioners of the district.
The application shall be subscribed and sworn to by each of the commissioners before an officer authorized by the laws of this State to take and certify oaths, who shall certify upon the application that he personally knows the commissioners and knows them to be the officers as affirmed in the application and that each has subscribed thereto in the officer's presence. The application shall be accompanied by a statement by the department which shall certify (and such statement need contain no detail other than the mere recitals) that a petition was filed, notice issued and hearing held as provided in Sections 48-9-510 and 48-9-540; that the department did duly determine that there is need, in the interest of the public health, safety and welfare, for a soil and water conservation district to function in the proposed territory and did define the boundaries thereof; that notice was given and a referendum held on the question of the creation of such district and that the result of such referendum showed a majority of the votes cast in such referendum to be in favor of the creation of the district; and that thereafter the department did duly determine that the operation of the proposed district is administratively practicable and feasible. Such statement shall set forth the boundaries of the district as defined by the department.
Section 48-9-630. The Secretary of State shall examine the application and statement and, if he finds that the name proposed for the district is not identical with that of any other soil and water conservation district of this State or so nearly similar as to lead to confusion or uncertainty, he shall receive and file them and shall record them in an appropriate book of record in his office. If the Secretary of State shall find that the name proposed for the district is identical with that of any other soil and water conservation district of this State or so nearly similar as to lead to confusion and uncertainty, he shall certify such fact to the department, which shall thereupon submit to the Secretary of State a new name for the district, which shall not be subject to such defects. Upon receipt of such new name, free of such defects, the Secretary of State shall record the application and statement, with the name so modified, in an appropriate book of record in his office. When the application and statement have been made, filed and recorded, as provided in Section 48-9-620 and this section, the district shall constitute a governmental subdivision of this State and a public body corporate and politic exercising public powers. The Secretary of State shall make and issue to the commissioners a certificate, under the seal of the State, of the due organization of the district and shall record such certificate with the application and statement.
Section 48-9-640. After six months shall have expired from the date of entry of a determination by the department that the operation of a proposed district is not administratively practicable and feasible and a denial of a petition pursuant to such determination, subsequent petitions may be filed as provided in Section 48-9-510 and action taken thereon in accordance with the provisions of this chapter.
Section 48-9-650. In any suit, action or proceeding involving the validity or enforcement of, or relating to, any contract, proceeding or action of the district, the district shall be deemed to have been established in accordance with the provisions of this chapter upon proof of the issuance of the certificate by the Secretary of State as provided in Section 48-9-630. A copy of such certificate duly certified by the Secretary of State shall be admissible in evidence in any such suit, action or proceeding and shall be proof of the filing and contents thereof."
Commission changed to department
SECTION 1189. Article 7, Chapter 9, Title 48 of the 1976 Code is amended to read:
"Article 7
Extension or Subdivision of Districts
Section 48-9-810. Petitions for including additional territory within an existing district may be filed with the department and the proceedings provided for in Article 5 of this chapter in the case of petitions to organize a district shall be observed in the case of petitions for such inclusion. The department shall prescribe the form for such petition, which shall be as nearly as may be in the form prescribed in Article 5 of this chapter for petitions to organize a district. When the total number of landowners in the area proposed for inclusion shall be less than twenty-five, the petition may be filed when signed by a majority of the landowners of such area and in such case no referendum need be held. In referenda upon petitions for such inclusion, all owners of land lying within the proposed additional area shall be eligible to vote.
Section 48-9-820. A portion of a soil and water conservation district, such portion being composed of one or more entire counties, may withdraw from such district and constitute itself a separate soil and water conservation district by the procedure set forth in this section and Sections 48-9-830 and 48-9-840. A petition signed by a majority of the members of the governing body of the soil and water conservation district or a petition signed by twenty-five landowners of the county or counties wishing to withdraw and constitute themselves a separate district may be filed with the department asking that the subdivision be made and constitute a district. Such petition shall (a) set forth the name of the district, (b) describe the existing boundary lines of the district and boundary lines of the proposed district (subdivision) and (c) request that the department hold a public hearing upon the question of the proposed subdivision and that the department duly define the boundary lines as set out in the petition.
Section 48-9-830. Within thirty days after such a petition has been filed with the department, it shall cause due notice to be given of a proposed hearing upon the question of the proposed subdivision. All occupiers of land lying within the proposed district and all other interested parties shall have the right to attend such hearing and to be heard.
Section 48-9-840. After such hearing the department shall determine, upon the facts presented at such hearing and upon such other relevant facts and information as may be available, whether there is need in the interest of the public health, safety and welfare for the proposed subdivision and whether the operation of the districts within the proposed boundaries will be administratively practicable and feasible. In making such determination, the department shall give due weight and consideration to the legislative determinations set forth in Section 48-9-20 and to the standards provided in Sections 48-9-560 and 48-9-600 for the guidance of the department in making its determinations in connection with the organization of districts. If the department determines that the proposed subdivision is not necessary in the interest of the public health, safety and welfare, or that the operation of the districts within the proposed boundaries would not be administratively practicable or feasible, it shall record such determination and deny the petition. If the department shall determine in favor of the proposed subdivision, it shall record such determination and define the boundary lines between the districts and shall notify the chairman of the governing body of the district to be divided of its determination.
Section 48-9-850. The department shall then proceed in accordance with Sections 48-9-610 to 48-9-630 to organize the subdivision into a district and to inform the Secretary of State of the change in the boundaries of the remaining district and to complete the organization of the governing body of the remaining district."
Commission changed to department
SECTION 1190. Article 9, Chapter 9, Title 48 of the 1976 Code is amended to read:
"Article 9
Discontinuance of Districts
Section 48-9-1010. At any time after five years after the organization of a district under the provisions of this chapter any twenty-five owners of land lying within the boundaries of such district may file a petition with the department praying that the operations of the district be terminated and the existence of the district discontinued. The department may conduct such public meetings and public hearings upon the petition as may be necessary to assist it in the consideration thereof.
Section 48-9-1020. Within sixty days after such a petition has been received by the department it shall give due notice of the holding of a referendum and shall supervise such referendum and issue appropriate regulations governing the conduct thereof. The question shall be submitted by ballots upon which the words `For terminating the existence of the (name of the soil and water conservation district to be here inserted)' and `Against terminating the existence of the (name of the soil and water conservation district to be here inserted)' shall appear with a square before each proposition and a direction to insert an X mark in the square before one or the other of the propositions as the voter may favor or oppose discontinuance of such district. All owners of land lying within the boundaries of the district shall be eligible to vote in such referendum. Only such landowners shall be eligible to vote. No informalities in the conduct of such referendum or in the matters relating thereto shall invalidate the referendum or the result thereof if notice thereof shall have been given substantially as provided in this section and the referendum shall have been fairly conducted.
Section 48-9-1030. The department shall publish the result of such referendum and shall thereafter consider and determine whether the continued operation of the district within the defined boundaries is administratively practicable and feasible. If the department shall determine that the continued operation of such district is administratively practicable and feasible it shall record such determination and deny the petition. If the department shall determine that the continued operation of such district is not administratively practicable and feasible it shall record such determination and shall certify such determination to the commissioners of the district. In making such determination the department shall give due regard and weight to the attitude of the owners and occupiers of lands lying within the district, the number of landowners eligible to vote in such referendum who shall have voted, the proportion of the votes cast in such referendum in favor of the discontinuance of the district to the total number of votes cast, the approximate wealth and income of the landowners and occupiers of the district, the probable expense of carrying on erosion-control operations within the district and such economic and social factors as may be relevant to such determination, having due regard to the legislative findings set forth in Section 48-9-20. But the department shall not have authority to determine that the continued operation of the district is administratively practicable and feasible unless at least a majority of the votes cast in the referendum shall have been cast in favor of the continuance of such district.
Section 48-9-1040. Upon receipt from the department of a certification that the department has determined that the continued operation of the district is not administratively practicable and feasible, pursuant to the provisions of this article, the commissioners shall forthwith proceed to terminate the affairs of the district. The commissioners shall dispose of all property belonging to the district at public auction and shall pay over the proceeds of such sale to be converted into the State Treasury. The commissioners shall thereupon file an application, duly verified, with the Secretary of State for the discontinuance of such district and shall transmit with such application the certificate of the department setting forth the determination of the department that the continued operation of such district is not administratively practicable and feasible. The application shall recite that the property of the district has been disposed of and the proceeds paid over as in this section provided and shall set forth a full accounting of such properties and proceeds of the sale. The Secretary of State shall issue to the commissioners a certificate of dissolution and shall record such certificate in an appropriate book of record in his office.
Section 48-9-1050. Upon issuance of a certificate of dissolution under the provisions of this article all ordinances and regulations theretofore adopted and in force within such district shall be of no further force and effect. All contracts theretofore entered into to which the district or commissioners are parties shall remain in force and effect for the period provided in such contracts. The department shall be substituted for the district or commissioners as a party to such contracts. The department shall be entitled to all benefits and subject to all liabilities under such contracts and shall have the same right and liability to perform, to require performance, to sue and be sued thereon and to modify or terminate such contracts by mutual consent or otherwise as the commissioners of the district would have had. Such dissolution shall not affect the lien of any judgment entered under the provisions of Section 48-9-1630 nor the pendency of any action instituted under the provisions of Section 48-9-1610 and the department shall succeed to all the rights and obligations of the district or commissioners as to such liens and actions.
Section 48-9-1060. The department shall not be required to entertain petitions for the discontinuance of any district nor conduct referenda upon such petitions nor make determinations pursuant to such petitions in accordance with the provisions of this article more often than once in five years."
Commission changed to board
SECTION 1191. Section 48-9-1210 of the 1976 Code is amended to read:
"Section 48-9-1210. The two commissioners appointed by the board shall be persons who are by training and experience qualified to perform the specialized skilled services which will be required of them in the performance of their duties under this chapter."
Commission changed to board
SECTION 1192. Section 48-9-1230 of the 1976 Code is amended to read:
"Section 48-9-1230. Except as otherwise provided in Section 48-9-1220, the term of office of each commissioner is four years, except that in newly created districts the elected commissioners' terms of office are until the next regular election is held under the provisions of Section 48-9-1220 and the first appointed commissioners must be designated to serve for terms of one and two years, respectively, from the date of their appointment. A commissioner shall hold office until his successor has been elected or appointed and has qualified. Vacancies must be filled for the unexpired term. The selection of successors to fill an unexpired term, or for a full term, must be made in the same manner in which the retiring commissioners shall, respectively, have been selected, except that in the case of a vacancy in the unexpired term of an elected commissioner a successor may be appointed by the board upon the unanimous recommendation of the remaining commissioners. Any commissioner may be removed by the board upon notice and hearing for neglect of duty or malfeasance in office, but for no other reason."
Commission changed to department
SECTION 1193. Section 48-9-1320 of the 1976 Code is amended to read:
"Section 48-9-1320. The commissioners shall furnish to the department, upon request, copies of such ordinances, rules, regulations, orders, contracts, forms and other documents as they shall adopt or employ and such other information concerning their activities as it may require in the performance of its duties under this chapter."
Commission changed to department
SECTION 1194. Section 48-9-1810 of the 1976 Code is amended to read:
"Section 48-9-1810. When the commissioners of any district organized under the provisions of this chapter shall adopt an ordinance prescribing land-use regulations in accordance with the provisions of Article 13 of this chapter they shall further provide by ordinance for the establishment of a board of adjustment. Such board of adjustment shall consist of three members, each to be appointed for a term of three years, except that the members first appointed shall be appointed for terms of one, two and three years, respectively. The members of each such board shall be appointed by the department, with the advice and approval of the commissioners of the district for which such board has been established, and shall be removable, upon notice and hearing, for neglect of duty or malfeasance in office, but for no other reason, such hearing to be conducted jointly by the department and the commissioners of the district. Vacancies in the board shall be filled in the same manner as original appointments, and shall be for the unexpired term of the member whose term becomes vacant."
Commission changed to board and department
SECTION 1195. Section 48-9-1820 of the 1976 Code is amended to read:
"Section 48-9-1820. Members of the board and the commissioners of the district shall be ineligible to appointment as members of the board during their tenure of such other office. The members of the board shall receive compensation for their services at a per diem rate to be determined by the department for time spent on the work of the board, in addition to expenses, including traveling expenses, necessarily incurred in the discharge of their duties. The commissioners shall pay the necessary administrative and other expenses of operation incurred by the board upon the certificate of the chairman of the board."
Chairman changed to director; commission changed to department
SECTION 1196. Section 48-9-1840 of the 1976 Code is amended to read:
"Section 48-9-1840. A land occupier may file a petition with the board alleging that there are great practical difficulties or unnecessary hardships in the way of his carrying out upon his lands the strict letter of the land-use regulations prescribed by ordinance approved by the commissioners and praying the board to authorize a variance from the terms of the land-use regulations in the application of such regulations to the lands occupied by the petitioner. Copies of such petition shall be served by the petitioner upon the chairman of the commissioners of the district within which his lands are located and upon the director of the department."
Commission changed to department
SECTION 1197. Section 48-9-1850 of the 1976 Code is amended to read:
"Section 48-9-1850. The board shall fix a time for the hearing of the petition and cause due notice of such hearing to be given. The commissioners of the district and the department may appear and be heard at such hearing. Any occupier of lands lying within the district who shall object to the authorizing of the variance prayed for may intervene and become a party to the proceedings. Any party to the hearing before the board may appear in person, by agent or by attorney. If, upon the facts presented at such hearing, the board shall determine that there are great practical difficulties or unnecessary hardships in the way of applying the strict letter of any of the land-use regulations upon the lands of the petitioner, it shall make and record such determination and shall make and record findings of fact as to the specific conditions which establish such great practical difficulties or unnecessary hardships. Upon the basis of such findings and determination the board may by order authorize such variance from the terms of the land-use regulations, in their application to the lands of the petitioner, as will relieve such great practical difficulties or unnecessary hardships and will not be contrary to the public interest and such that the spirit of the land-use regulations shall be observed, the public health, safety and welfare secured and substantial justice done."
Definitions
SECTION 1198. Section 48-11-10 of the 1976 Code is amended by adding at the end the following:
"(12) `Department' means the Department of Natural Resources.
(13) `Division' means Land Resources and Conservation Districts Division.
(14) `Board' means the board of the Department of Natural Resources."
Commission changed to department
SECTION 1199. Section 48-11-15 of the 1976 Code is amended to read:
"Section 48-11-15. The Department of Natural Resources shall assist boards of commissioners of soil and water conservation districts and boards of directors of watershed conservation districts with the organization and function of watershed conservation districts. For the purpose of this chapter, the responsibility of the department is limited to this activity. The construction, operation, and maintenance of watershed works of improvement are the sole responsibility of watershed conservation districts and others as specified in documents for the works of improvement."
Commission changed to department
SECTION 1200. Section 48-11-90 of the 1976 Code is amended to read:
"Section 48-11-90. The county election commission shall tabulate the results of the referendum at the close of the polls and certify the results to the clerks of court of the counties in which part of the district is situated. Upon proper recordation of the referendum results by the clerks of court the watershed conservation district constitutes a governmental subdivision of this State and a public body corporate and politic. After recording the results the clerks of court shall notify the board of commissioners in writing that the watershed conservation district has been created, and the soil and water conservation district board shall submit to the department a copy of the notification."
Commission changed to department
SECTION 1201. Section 48-11-100 of the 1976 Code is amended to read:
"Section 48-11-100. (A) The governing body of each watershed conservation district consists of five directors selected as provided in this section. No person may be a director who is not a qualified elector residing in the district.
(B) The first directors of the watershed conservation district after the district has been created must be elected in a nonpartisan election conducted by the county election commission when county officers are elected in the general election. To be placed on the ballot each candidate shall submit to the county election commission a nominating petition with the signatures of twenty-five qualified electors residing in the watershed conservation district, or, if less than fifty qualified electors reside in the district, a majority of the qualified electors. The official number of qualified electors residing in a watershed conservation district is the number of registered electors residing in the district and registered one hundred twenty days before the date of the election for which the nomination petition is being submitted. The candidate named in each petition must be placed on the appropriate official ballot for the election if the petition is submitted to the county election commission not later than twelve noon on August first or, if August first falls on Sunday, not later than twelve noon on the following Monday. The form of the petition must comply with the requirements in Section 7-11-80 pertaining to the conduct of general elections not conflicting with this section. This election must be conducted pursuant to Title 7, mutatis mutandis, except as otherwise provided in this section. The five elected directors, under the general supervision of the board of commissioners of the soil and water conservation district, are the governing body of the watershed conservation district.
(C) (1) Of the directors first elected, the three receiving the largest number of votes serve for terms of four years, and the two receiving the next largest number of votes serve for terms of two years.
(2) The term of office of each of their successors is four years, except in lieu of election successors may be appointed in watershed conservation districts if:
(a) one of the sponsors, other than the watershed conservation district board of directors, of each phase of each work of improvement conducted by the district, including operation and maintenance of the work of improvement, has the authority to levy an annual tax on the real property in the district for that phase of the work of improvement;
(b) the watershed conservation district has sufficient funds, other than taxes levied by the district on real property in the district, to pay the expenses of the district.
(3) Twenty-five or more qualified electors residing in a watershed conservation district may submit a petition to the board of commissioners of the soil and water conservation district for the procedure by which watershed conservation district directors are selected to be changed from election to appointment. The board of commissioners shall determine whether the prerequisites for appointment described in item (1) are met. To help make this decision the board shall give due notice of and hold a public hearing on the proposed change within sixty days after receiving the petition. After the public hearing the board of commissioners shall determine whether the prerequisites are met.
(4) If the board of commissioners determine that the prerequisites are met, a referendum to approve or disapprove the change in the procedure for selecting watershed conservation district directors must be held by the county election commission in the next scheduled countywide election in the counties where the watershed conservation district is located. Applicable rules of the scheduled election apply to the referendum. Due notice of the referendum must be given by the county election commission. Notice must state that, if the procedure for selecting watershed conservation district directors is changed from election to appointment, the change is effective as current terms expire and that the authority of the watershed conservation district to levy an annual tax on real property in the district ceases when the first of the current terms expires and has been filled by appointment and continues as long as directors are appointed instead of elected. Only qualified electors residing in the watershed conservation district may vote in the referendum.
(5) The county election commission shall tabulate the results of the referendum, submit the results in writing to the board of commissioners of the soil and water conservation district, and certify the results to the clerks of court of the counties in which the watershed conservation district is located. If a majority of the votes cast in the referendum favor changing the procedure for selecting watershed conservation district directors from election to appointment, the board of commissioners shall submit written notification to the county election commission, county auditors, sponsors of works of improvement of the watershed conservation district, watershed district directors, and the department that the selection procedure is changed when current terms expire and that the authority of the watershed conservation district board to levy an annual tax on real property in the district ceases, when the first of the current terms expires and has been filled by appointment and continues as long as directors are appointed instead of elected.
(6) The governing body of each county in which the watershed conservation district is located shall appoint one director each, and the board of commissioners of the soil and water conservation district shall appoint the remaining directors. To be considered for appointment by the board of commissioners of the soil and water conservation district or the county governing body, an individual shall submit to the board or body from which appointment is sought a nominating petition with the signatures of twenty-five qualified electors residing in the watershed conservation district, or, if less than fifty qualified electors reside in the district, a majority of the qualified electors. The official number of qualified electors residing in a watershed conservation district is the number of registered electors residing in the district and registered one hundred twenty days before the date by which nominating petitions must be submitted. The board of commissioners and the county governing body shall give due notice that they will receive petitions to nominate candidates to be appointed as watershed conservation district directors. Due notice must be given at least sixty days before the date by which petitions must be submitted.
(7) The board of commissioners of the soil and water conservation district shall:
(a) maintain records on the election and appointment of directors;
(b) coordinate appointments by the county governing bodies, including written notification to the county governing bodies at least ninety days before the expiration of each term to be filled through appointment by the county governing body;
(c) submit in writing to the department the name of each elected or appointed director within thirty days of election or appointment.
(8) When each phase of a work of improvement of a watershed conservation district for which directors are appointed does not have a sponsor with authority to levy an annual tax on real property in the district for that phase of the work of improvement, or when the watershed conservation district does not have sufficient funds to pay the expenses of the district, the procedure for selecting watershed conservation district directors must be changed from appointment to election, and the board of commissioners shall notify in writing the county election commission, county auditor, sponsors of works of improvement of the watershed conservation district, watershed conservation district directors, and the department that the selection procedure is changed when current terms expire and that when current terms expire and have been filled by election, the watershed conservation district board may levy an annual tax on real property in the district as long as directors are elected instead of appointed. For a vacancy occurring before the expiration of the term of an elected director, a successor to serve for the unexpired portion of the term must be appointed by the board of commissioners.
(D) For a vacancy occurring before the expiration of the term of an appointed director, a successor to serve for the unexpired portion of the term must be appointed by the body that made the original appointment. A director may be removed from office by the board of commissioners upon notice and hearing for neglect of duty or malfeasance in office but for no other reason.
(E) For each calendar year the directors annually shall elect from among their number a chairman, secretary, and treasurer and so notify the soil and water conservation district and the department by March thirty-first each year. The board of directors, with the approval of the board of commissioners of the soil and water conservation district, may employ officers, agents, and other employees it requires and determine their qualifications, duties, and compensation. The board of directors shall provide for the execution of surety bonds for the officers, agents, or employees entrusted with funds or property of the watershed conservation district, tort liability insurance for each director of the watershed conservation district board, for the keeping of a full and accurate record of the proceedings, resolutions, and other actions of the board, and for the making and publication of an annual audit of the accounts of receipts and disbursements of the watershed conservation district. The watershed conservation district board shall submit a copy of the audit to the county treasurer and to the board of commissioners of the soil and water conservation district. The watershed conservation district board shall submit written notification to the department within one hundred twenty days following the end of the district's fiscal year that the audit has been made, the date of the audit, and the name of the firm that or individual who made the audit.
(F) The directors may receive no compensation for their services, but they may be reimbursed from the budget of the watershed conservation district or from another local source for expenses, including traveling expenses, necessarily incurred in the discharge of their powers and duties as approved by the board of commissioners."
Commission changed to department
SECTION 1202. Section 48-11-185(D) of the 1976 Code is amended to read:
"(D) The county election commission shall tabulate the results of the referendum at the close of the polls, submit a written report of the results to the board of commissioners of the soil and water conservation district, and certify the results of the referendum to the clerks of court of the counties in which the district is situated. If a majority of the votes cast in the referendum are in favor of consolidation of the watershed conservation districts into the single district, upon proper recordation of the referendum results by the clerks of court of the counties, the watershed conservation district constitutes a governmental subdivision of this State and a public body corporate and politic and must be organized and shall function fully in accordance with this chapter. After recording the results the clerks of court shall notify the board of commissioners of the soil and water conservation district in writing that the watershed conservation district has been established. The board of commissioners shall submit to the department a copy of the notification from the clerks of court."
Commission changed to department
SECTION 1203. Section 48-11-190(C) of the 1976 Code is amended to read:
"(C) After recording the results of the referendum, the clerks of court shall notify the board of commissioners of the soil and water conservation district and the board of directors of the watershed conservation district in writing that the watershed conservation district has been discontinued, and the directors immediately shall terminate the affairs of the watershed conservation district. The board of commissioners shall submit to the department a copy of the notification from the clerks of court."
Commission changed to department
SECTION 1204. Section 48-11-210(D) of the 1976 Code is amended to read:
"(D) The board of commissioners of each of the soil and water conservation districts in which a part or all of each of the watershed conservation districts in subsections (A), (B), and (C) is located shall initiate action with the board of directors of the watershed conservation district and the county government to carry out this revision in the organization and function of the watershed conservation district. The department shall assist each of the boards of commissioners of the affected soil and water conservation districts with this responsibility. The department shall initiate this assistance by providing written directions and guidance to each of the affected soil and water conservation districts within ninety days of the effective date of this chapter, as amended. The department may adopt policy and has broad authority to carry out this section."
Definitions revised
SECTION 1205. Items (1), (4), and (6) of Section 48-14-20 of the 1976 Code are amended to read:
"(1) `Department' means the South Carolina Department of Health and Environmental Control.
(4) `Implementing agency' means the department, local government, or conservation district with the responsibility for receiving stormwater management and sediment control plans for review and approval, reviewing plans, issuing permits for land disturbing activities, and conducting inspections and enforcement actions in a specified jurisdiction.
(6) `Designated Watershed' means a watershed designated by a local government and approved by the Department of Health and Environmental Control and identified as having an existing or potential stormwater, sediment control, or nonpoint source pollution problem."
Commission changed to department
SECTION 1206. Section 48-14-40(F) of the 1976 Code is amended to read:
"(F) Any of the following land disturbing activities undertaken by any person who provides gas, electrification, or communications services, subject to the jurisdiction of the South Carolina Public Service Commission, or corporations organized and operating pursuant to Section 33-49-10 et seq.:
(1) land disturbing activities conducted pursuant to a certificate of environmental compatibility and public convenience and necessity issued pursuant to Title 58, Chapter 33 or land disturbing activities conducted pursuant to any other certification or authorization issued by the Public Service Commission;
(2) land disturbing activities conducted pursuant to a federal environmental permit, including Section 404 of the Federal Clean Water Act, and including permits issued by the Federal Energy Regulatory Commission;
(3) land disturbing activities associated with emergency maintenance or construction of electric, gas, or communications facilities, when necessary to restore service or when the Governor declares the area to have sustained a disaster and the actions are undertaken to protect the public from a threat to health or safety;
(4) land disturbing activities associated with routine maintenance and/or repair of electric, gas, or communications lines;
(5) land disturbing activities associated with the placement of poles for overhead distribution or transmission of electric energy or of communications services;
(6) land disturbing activities associated with placement of underground lines for distribution or transmission of electric energy or of gas or communications services; or
(7) land disturbing activities conducted by a person filing environmental reports, assessments, or impact statements with the United States Department of Agriculture, Rural Electrification Administration in regard to a project.
Any person, other than a person identified in subparagraph (7), who undertakes land disturbing activities described in subparagraphs (4), (5), and (6) of this subsection must file with the South Carolina Public Service Commission, in a Policy and Procedures Manual, the procedures it will follow in conducting such activities. Any person, other than a person identified in subparagraph (7), who conducts land disturbing activities described in subparagraph (2) of this subsection, must address the procedures it will follow in conducting the activities in the Policy and Procedures Manual filed with the South Carolina Public Service Commission to the extent that the land disturbing activities are not specifically addressed in the federal permit or permitting process. If any person, other than a person identified in subparagraph (7), does not have a Policy and Procedures Manual on file with the Public Service Commission, such manual must be filed with the Public Service Commission not later than six months after May 27, 1992.
Any person who undertakes land disturbing activities described in subparagraph (7) of this subsection shall give the same written notice to the department as given to agencies whose permits are required for project approval by the regulations of the United States Department of Agriculture, Rural Electrification Administration."
Commission changed to department
SECTION 1207. Section 48-14-50 of the 1976 Code is amended to read:
"Section 48-14-50. (A) The department shall develop a State Stormwater Management and Sediment Reduction Program.
(B) In carrying out this chapter, the department shall:
(1) provide technical and other assistance to local governments and others in implementing this chapter;
(2) require that appropriate stormwater management and sediment control provisions be included in all stormwater management and sediment control plans developed pursuant to this chapter;
(3) cooperate with appropriate agencies of this State, the United States, other states, or any interstate agency with respect to stormwater management and sediment control;
(4) conduct studies and research regarding the causes, effects, and hazards of stormwater and sediment and methods to control stormwater runoff and sediment;
(5) conduct and supervise educational programs with respect to stormwater management and sediment control;
(6) require the submission to the department of records and periodic reports by implementing agencies as may be necessary to carry out this chapter;
(7) establish a means of communications, such as a newsletter, so that information regarding program development and implementation can be distributed to interested individuals;
(8) assist conservation districts and local governments involved in the local stormwater management and sediment control program; and
(9) develop a schedule for implementing this chapter in the counties and municipalities of this State.
(C) The department shall promulgate regulations, minimum standards, guidelines, and criteria necessary to carry out the provisions of this chapter with input from the South Carolina Erosion and Sediment Reduction Advisory Council, appointed by the Governor, in consultation with the South Carolina Association of Special Purpose Districts, and the South Carolina Municipal Association, and a task force of technical experts appointed by the department. The regulations must include, but are not limited to:
(1) criteria for the delegation of program elements and review and revocation of delegated program elements;
(2) appeal procedures for local governments requesting delegation of program elements;
(3) types of activities that require a stormwater management and sediment control permit;
(4) waivers, exemptions, variances, and appeals;
(5) stormwater management and sediment control plan application or inspection fees;
(6) criteria for distribution of funds collected by sediment and stormwater plan approval and inspection fees;
(7) criteria for implementation of a stormwater management utility;
(8) specific design criteria and minimum standards and specifications;
(9) permit application and approval requirements;
(10) specific enforcement options;
(11) criteria for approval of designated watersheds;
(12) criteria regarding correction of off-site damages resulting from the land disturbing activity;
(13) construction inspections;
(14) maintenance requirements for sediment control during construction and stormwater management structures after construction is completed;
(15) procedures to accept and respond to citizen complaints on delegated program components and individual site problems; and
(16) a schedule for implementing this chapter considering such factors as demographics, growth and development, and state and local resources.
(D) These regulations promulgated for carrying out the stormwater management and sediment control program must:
(1) be based upon relevant physical and developmental information concerning the watershed and drainage basins of the State, including but not limited to, data relating to land use, soils, hydrology, geology, grading, ground cover, size of land area being disturbed; and
(2) contain conservation standards for various types of soils and land uses, which standards must include criteria and alternative techniques and methods for the control of erosion, sediment, and stormwater runoff resulting from land disturbing activities.
(E) The department may amend, modify, or repeal these regulations in accordance with the provisions of the Administrative Procedures Act."
Commission changed to department
SECTION 1208. Section 48-14-60 of the 1976 Code is amended to read:
"Section 48-14-60. (A) The department may delegate any or all components of stormwater management and sediment control programs to a local government or conservation district pursuant to regulations promulgated by the department.
(B) Requests for delegation of program elements must be submitted within six months of the promulgation of the applicable state regulation, and by January first of subsequent years if delegation is desired at a future date. The department shall approve, approve with modification, or deny such a request on or before April first of the year for which delegation is sought.
(C) Delegation, once applied for, becomes effective on July first and may not exceed three years, at which time delegation renewal is required.
(D) A local government may develop the program in cooperation with conservation districts.
(E) In the event a local government does not adopt and request approval of a stormwater management and sediment control program within its jurisdiction, the local conservation district may adopt a program in conjunction with subdivision regulations, if applicable, and submit it to the department for approval.
(F) The department has jurisdiction, to the exclusion of other implementing agencies, for the purpose of adopting the components of a sediment control and stormwater management program for land disturbing activities that are:
(1) conducted by the United States;
(2) conducted by persons having the power of eminent domain for land disturbing activities which cross jurisdictional boundaries;
(3) conducted by local governments."
Commission changed to department; provide for the department's action pursuant to the Administrative Procedures Act
SECTION 1209. Section 48-14-70 of the 1976 Code is amended to read:
"Section 48-14-70. (A) Any local government that has adopted a stormwater management and/or sediment control program before May 27, 1992 may request approval of any or all components of its existing program within its jurisdiction. This request must be submitted within six months of the promulgation of the applicable state regulation. The review and approval, approval with modification, or disapproval of these existing programs must be given priority by the department. The local government shall continue to administer its existing programs during the review process by the department. The review must include consideration of the efficiency and effectiveness of the existing program in meeting the intent of this chapter.
(B) The department shall approve a program upon determining that its standards equal or exceed those of this chapter. The department shall only modify the portions of a program which do not meet the minimum standards of this chapter.
(C) If a local government's request for approval of one or more components of an existing stormwater management or sediment control is not approved by the department, the local government may appeal the department's action following the procedures detailed in the Administrative Procedures Act."
Commission changed to department
SECTION 1210. Section 48-14-80 of the 1976 Code is amended to read:
"Section 48-14-80. One year after May 27, 1992, a federal agency may not undertake any regulated activity unless the agency has submitted a stormwater management and sediment control plan to the department and received its approval. The only variation to this requirement is when program elements are delegated by the department to a federal agency."
Commission changed to department
SECTION 1211. Section 48-14-85 of the 1976 Code is amended to read:
"Section 48-14-85. After May 27, 1992, a local government or special purpose or public service district may not undertake any regulated activity unless the local government or special purpose or public service district has submitted a request for a general permit to the department and received its approval."
Commission changed to department
SECTION 1212. Section 48-14-90 of the 1976 Code is amended to read:
"Section 48-14-90. (A) With respect to approved stormwater management and sediment control plans, the implementing agency shall ensure that periodic reviews are undertaken, implementation is accomplished in accordance with the approved plans, and the required measures are functioning in an effective manner. Notice of right of entry must be included in the stormwater management and sediment control plan certification. The implementing agency may request assistance from the department.
(B) The request for assistance from the department may initiate an inspection to verify site conditions. That inspection may result in the following actions:
(1) notification by the implementing agency to the person responsible for the land disturbing activity to comply with the approved plan within a specified time;
(2) notification by the implementing agency that the required measures are not functioning in an effective manner with a schedule for the person responsible for the disturbing activity to maintain the required measures or install additional measures which will be effective in controlling stormwater runoff and off-site sediment movement.
(C) Failure of the person responsible for the land disturbing activity to comply with department requirements may result in the following actions in addition to other penalties as provided in this chapter:
(1) The department may request that the appropriate implementing agency issue a stop work order until the violations have been remedied.
(2) The department may request that the appropriate implementing agency refrain from issuing any further building or grading permits to the person having outstanding violations until those violations have been remedied.
(3) The department may recommend fines to be levied by the implementing agency."
Commission changed to department
SECTION 1213. Section 48-14-110 of the 1976 Code is amended to read:
"Section 48-14-110. The department, in conjunction with local governments and districts and other appropriate state and federal agencies, shall conduct educational programs in stormwater management and sediment control for state and local government officials, persons engaged in land disturbing activities, interested citizen groups, and others."
Commission changed to department
SECTION 1214. Section 48-14-120 of the 1976 Code is amended to read:
"Section 48-14-120. (A) The implementing agencies are authorized to receive from federal, state, or other public or private sources financial, technical, or other assistance for use in accomplishing the purposes of this chapter.
(B) The implementing agency has authority to adopt a fee system to help fund program administration. A fee system may be adopted by the implementing agency to help to fund overall program management, plan review, construction review, enforcement actions, and maintenance responsibilities. In those situations where the department becomes the implementing agency, the department may assess a plan review and inspection fee. Fees must be based upon the costs to the implementing agency to implement and administer the program. The implementing agency is granted authority to expend the funds it collects from the fee system to administer the provisions of this chapter. The department shall not assess a local government a plan review and inspection fee.
(C) Authority is granted to local governments to establish a stormwater utility. The stormwater utility may fund such activities as watershed master planning, facility retrofitting, and facility maintenance. This funding shall occur through the establishment of a fee system or tax assessment that must be reasonable and equitable. Criteria for the implementation of the stormwater utility must be established in regulations promulgated under this chapter. The implementation of a stormwater utility will necessitate the adoption of a local utility ordinance prior to its implementation."
Approval by the department
SECTION 1215. Section 48-14-130 A(7) of the 1976 Code is amended to read:
"(7) a public involvement process which includes the establishment of a local watershed advisory committee and public hearing prior to approval by the department."
Commission changed to department
SECTION 1216. Section 48-14-140 of the 1976 Code is amended to read:
"Section 48-14-140. (A) Any person who violates any provision of this chapter or any ordinance or regulation promulgated, enacted, adopted, or issued pursuant to this chapter by the department or other implementing agency, or who initiates or continues a land disturbing activity for which a stormwater management and sediment control plan is required except in accordance with the terms, conditions, and provisions of an approved plan, is subject to a civil penalty of not more than one thousand dollars. No penalty may be assessed until the person alleged to be in violation has been notified of the violation. Each day of a violation constitutes a separate violation.
(B) The implementing agency shall determine the amount of the civil penalty to be assessed under this section for violations under its jurisdiction. It shall make written demand for payment upon the person responsible for the violation and set forth in detail the violation for which the penalty has been invoked. If payment is not received or equitable settlement reached within thirty days after demand for payment is made, a civil action may be filed in the circuit court in the county in which the violation is alleged to have occurred to recover the amount of the penalty. If the implementing agency is the department, the action must be brought in the name of the State. Local governments shall refer the matters under their jurisdiction to their respective attorneys for the institution of a civil action in the name of the local government in the circuit court in the county in which the violation is alleged to have occurred for recovery of the penalty."
Commission changed to department
SECTION 1217. Section 48-14-160 of the 1976 Code is amended to read:
"Section 48-14-160. Nothing contained in this chapter and no action or failure to act under this chapter may be construed:
(1) to impose any liability on the State, department, districts, local governments, or other agencies, officers, or employees thereof for the recovery of damages caused by such action or failure to act; or
(2) to relieve the person engaged in the land disturbing activity of the duties, obligations, responsibilities, or liabilities arising from or incident to the operations associated with the land disturbing activity."
Commission changed to department
SECTION 1218. Section 48-14-170 of the 1976 Code is amended to read:
"Section 48-14-170. The department shall promulgate regulations necessary to implement Chapter 14, Title 48 of the 1976 Code added by this act."
Definitions revised; commission changed to department; obsolete references deleted
SECTION 1219. Chapter 18, Title 48, of the 1976 Code is amended to read:
"CHAPTER 18
Erosion and Sediment Reduction Act of 1983
Section 48-18-10. This chapter may be cited as the Erosion and Sediment Reduction Act of 1983.
Section 48-18-20. As used in this chapter:
(1) `Erosion' means the wearing away of the ground surface by the action of wind, water, gravity, or any combination thereof.
(2) `Sediment' means soil or other earth-like material that has been moved by the forces of water, wind, gravity, or any combination of them.
(3) `Sedimentation' means the process or action of depositing sediment.
(4) `Land disturbing activity' means any land change which may result in excessive erosion and sedimentation.
(5) `Stormwater' means the direct runoff of water and associated material resulting from precipitation in any form.
(6) `Local government' means any county or municipality.
(7) `Soil and water conservation district' or `conservation district' means a governmental subdivision of the State created pursuant to Chapter 9 of Title 48; and `conservation district board' means the governing body of a soil and water conservation district.
(8) `Department' means the South Carolina Department of Health and Environmental Control.
(9) `Privately owned land' means all land not owned by the State, a state agency, quasi-state agency, subdivision of the State, or a federal governmental agency.
(10) `Quasi-state agency' means any entity other than a state agency but having some attributes of a state agency by virtue of the fact that the State has some authority to make rules and regulations by which it is governed. For the purpose of this chapter, the South Carolina Public Service Authority is a quasi-state agency; county and municipal governments and special purpose districts are not quasi-state agencies.
(11) `Board' means the board of the department.
Section 48-18-30. This chapter does not apply to the following:
(1) Activities regulated by the South Carolina Mining Act (Chapter 19 of Title 48).
(2) Beach erosion, which for the purpose of this chapter, means removal of soil, sand, or rock from the land adjacent to the ocean due to wave action.
Section 48-18-40. The department shall implement a statewide erosion and sediment reduction and stormwater management program as follows:
(1) The department is designated as the state agency responsible for developing, coordinating, and promoting erosion and sediment reduction and stormwater management programs in the State.
(2) The department must develop general guidelines for reducing erosion and sedimentation and improving stormwater management for use by conservation districts, local government, landowners, and land users of the State. The department must publicize and promote these guidelines through information and education programs.
(3) The department must conduct surveys, investigations, and assessments of erosion, sediment, and stormwater management problems.
(4) The department must make available existing technical assistance upon request to local governments, conservation districts, landowners, and land users.
(5) The department must promulgate regulations for erosion and sediment reduction and stormwater management only on land either owned by the State, a state agency, or quasi-state agency or land under the management or control of such an entity through right-of-way easements or other agreements between such entities and private landowners, and must develop regulations for this purpose pursuant to Section 48-18-70. The regulations shall apply to privately owned lands only where they are under the management or control of the State, a state agency, or quasi-state agency through right-of-way easements or other agreements.
Section 48-18-50. (1) A state Advisory Council on Erosion and Sediment Reduction (State Advisory Council), which may include, but not be limited to, a representative of each of the following, must be appointed by the Governor upon the advice of the following agencies and organizations:
South Carolina Association of Counties
South Carolina Municipal Association
South Carolina Association of Conservation Districts
South Carolina Home Builders Association
Associated General Contractors, Inc.
South Carolina Association of Realtors
South Carolina Chapter, American Society of Landscape Architects
South Carolina Chapter, American Society of Civil Engineers
Council of Governments Executive Director's Committee
South Carolina Farm Bureau
South Carolina State Grange
Office of the Governor
USDA-Soil Conservation Service
Clemson University
South Carolina Department of Health and Environmental Control
South Carolina Forestry Commission
South Carolina Forestry Association
South Carolina Chapter
American Institute of Architects
(2) The department must provide staff support to the State Advisory Council.
(3) Duties of the State Advisory Council include, but are not limited to the following:
(a) Study the erosion and sediment reduction and stormwater management programs of other states and evaluate their applicability to South Carolina.
(b) Evaluate erosion, sedimentation, and stormwater conditions in the State.
(c) Recommend improvements and changes to meet the needs for erosion and sediment reduction and stormwater management in the State.
(d) Assist the department with educational programs including, but not limited to, seminars, conferences, workshops, media productions, and written publication.
(e) Compile information pertaining to sedimentation of water bodies in the State.
(f) Evaluate and recommend conservation programs and technology for reducing erosion and sedimentation and improving stormwater management.
(g) Evaluate the need for additional legislation for erosion and sediment reduction and stormwater management.
(h) Recommend appropriate recognition programs for landowners and land users implementing outstanding erosion and sediment reduction and stormwater management programs.
(i) Provide information to the department as needed.
Section 48-18-60. (1) The Conservation Districts shall:
(a) Assist in the development and promotion of erosion and sediment reduction and stormwater management programs as considered necessary by the conservation district boards.
(b) Provide leadership in the promotion of erosion and sediment reduction and stormwater management within their boundaries.
(c) Coordinate and seek assistance of governmental agencies, organizations, landowners, and land users for erosion and sediment reduction and stormwater management.
(d) Conduct demonstrations on erosion and sediment reduction and stormwater management utilizing proven conservation technology.
(e) Assist in the preparation of conservation plans for erosion and sediment reduction as requested by landowners and land users.
(f) Provide available technical assistance for erosion and sediment reduction and stormwater management planning upon request by landowners and land users.
(g) Perform other duties as defined in the Conservation Districts Law (Chapter 9 of Title 48).
(2) Each conservation district must appoint an Advisory Council on Erosion and Sediment Reduction (Local Advisory Council) which may include, but not be limited to a:
(a) local homebuilder.
(b) local contractor.
(c) local realtor.
(d) municipal councilman.
(e) county planning agency representative.
(f) county councilman.
(g) conservation district commissioner.
(h) county farm bureau representative.
(i) county grange representative.
(j) USDA-Soil Conservation Service representative.
(k) county extension service representative.
(l) State Forestry Commission representative.
(m) local civil engineer.
(n) local architect.
(o) local landscape architect.
(3) Duties of the Local Advisory Council include, but are not limited to, the following:
(a) Study the erosion and sediment reduction and stormwater management programs of other districts and evaluate their applicability to its respective district.
(b) Evaluate erosion, sedimentation, and stormwater conditions in the district.
(c) Recommend improvements and changes to meet the needs for erosion and sediment reduction and stormwater management in the district.
(d) Assist the district with educational programs, including but not limited to, seminars, conferences, workshops, media productions, and written publications.
(e) Compile information pertaining to sedimentation of water bodies in the district.
(f) Evaluate and recommend conservation programs and technology for reducing erosion and sedimentation and improving stormwater management.
(g) Evaluate the need for additional programs for erosion and sediment reduction and stormwater management.
(h) Recommend appropriate recognition programs for landowners and land users implementing outstanding erosion and sediment reduction and stormwater management programs.
(i) Provide information to the district as needed.
Section 48-18-70. (1) The department shall promulgate regulations for erosion and sediment reduction and stormwater management only on land either owned by this State, a state agency, or quasi-state agency or land under the management or control of these entities through right-of-way easements or other agreements between these entities and private landowners, except that the regulations may not apply to forest land owned or managed by the South Carolina Forestry Commission. The regulations apply to privately-owned lands only where they are under the management or control of this State, a state agency, or quasi-state agency through right-of-way easements or other agreements. The regulations must include, but not be limited to, technical standards, specifications, and guidelines for erosion and sediment reduction and stormwater management, and requirements for the implementation of the standards and specifications. The department shall develop and propose for approval the regulations provided for in this subsection in consultation with the State Engineer, Division of General Services, and other state agencies as applicable. The State Engineer shall insure that the regulations are followed on all land and land disturbing activities under his jurisdiction.
(2) The department or its designated representative may inspect land owned by this State, a state agency, or quasi-state agency or land under the management or control of these entities through right-of-way easements or other agreements between these entities and private landowners to determine existing erosion and sedimentation and stormwater management problems and to insure the implementation of the provisions of the regulations provided for in subsection (1) of this section.
(3) A state agency found by the department to be in noncompliance with the erosion and sediment reduction and stormwater management standards provided for in subsection (1) of this section shall take the necessary steps indicated by the standards and specifications provided for in subsection (1) of this section to correct the problems.
(4) The department in consultation with the South Carolina Department of Transportation shall promulgate regulations for erosion and sediment reduction and stormwater management on land and land disturbing activities under the jurisdiction of the department.
(5) The South Carolina Forestry Commission shall develop a plan, in consultation with the department, for erosion and sediment reduction and stormwater management on forest land owned or managed by the Forestry Commission, and shall implement the plan.
Section 48-18-80. Each conservation district must submit to the department an annual evaluation report with input from the Local Advisory Council on the progress in erosion and sediment reduction and stormwater management in the district. The department shall submit a comprehensive report to the Governor and the General Assembly every five years."
Commission changed to department
SECTION 1220. Section 48-20-30 of the 1976 Code is amended to read:
"Section 48-20-30. The South Carolina Department of Health and Environmental Control is responsible for administering the provisions and requirements of this chapter. This includes the process and issuance of mining permits, review and approval of reclamation plans, collection of reclamation performance bonds, conduct of environmental appraisals, technical assistance to mine operators and the public, implementation of research and demonstration projects, and inspections of all mining operations and reclamation as set forth in this chapter. Proper execution of these responsibilities may necessitate that the department seek comment from other relevant state agencies regarding matters within their respective areas of statutory responsibility or primary interests. The department has ultimate authority, subject to the appeal provisions of this chapter, over all mining, as defined in this chapter, and the provisions of this chapter regulating and controlling such activity."
Commission changed to department
SECTION 1221. Section 48-20-40(3) of the 1976 Code is amended to read:
"(3) `Department' means the South Carolina Department of Health and Environmental Control. Whenever in this chapter the department is assigned duties, they may be performed by the director or by subordinates as he designates."
Commissioner changed to department
SECTION 1222. Section 48-20-110 of the 1976 Code is amended to read:
"Section 48-20-110. Each applicant for a certificate of exploration, and each applicant for an operating permit, shall file with the department, upon approval of the application, and maintain in force a bond in an amount set forth in this section. All bonds must be in favor of the State of South Carolina, executed by a surety approved by the Department of Insurance in the amount set forth in this section. The bond must be continuous in nature and must remain in force until canceled by the surety. Cancellation by the surety is effectuated only upon sixty days' written notice to the department and to the operator. The applicant may file a separate bond for each certificate of exploration or operating permit or may file a blanket bond covering all exploration activities or mining operations within the State for which he holds certificates or permits. The amount of each bond required for a certificate of exploration must be two thousand, five hundred dollars. The amount of each bond for operating permits must be based upon the area of affected land to be reclaimed under the approved reclamation plan to which it pertains, less any area whose reclamation has been completed and released from coverage by the department pursuant to Section 48-20-130. If the area totals less than ten acres, the bond must be ten thousand dollars. If it is ten acres or more but less than fifteen acres, the bond must be fifteen thousand dollars. If it is fifteen or more acres the bond must be twenty-five thousand dollars. If an area totals more than twenty-five acres, the department may require a bond in excess of twenty-five thousand dollars if a greater bond is necessary to insure reclamation as provided by this chapter. All mining operations must have the reclamation bond amounts in effect by July 1, 1995, or before if the mining permit is modified to increase the affected land. The bond must be conditioned upon the faithful performance of the requirements set forth in this chapter and of the regulations adopted pursuant to it. Liability under the bond must be maintained as long as reclamation is not completed in compliance with the approved reclamation plan unless released only upon written notification from the department. Notification must be given upon completion of compliance or acceptance by the department of a substitute bond. In no event may the liability of the surety exceed the amount of surety bond required by this section. In lieu of the surety bond required by this section, the explorer or operator may file with the department a cash deposit, registered securities acceptable to the department, an assignment of a savings account in a South Carolina bank, or other securities acceptable to the department on an assignment form prescribed by the department. If the license to do business in South Carolina of a surety upon a bond filed pursuant to this chapter is suspended or revoked, the operator, within sixty days after receiving notice, shall substitute for the surety a good and sufficient corporate surety authorized to do business in this State or file with the department one of the alternative forms of surety prescribed in this section. Upon failure of the operator to make the substitution, the permit must be suspended until the substitute bond is posted and written documentation is provided to the department."
Council changed to department; provisions for regulation revised
SECTION 1223. Section 48-20-210 of the 1976 Code is amended to read:
"Section 48-20-210. The department shall promulgate regulations to implement the provisions of this chapter as provided by Article 1, Chapter 23 of Title 1. The regulations must set forth the duties of operators applying for certificates of exploration and operating permits under this chapter and also those of the department director, his subordinates, or designees."
Commission changed to department
SECTION 1224. Section 48-20-270 of the 1976 Code is amended to read:
"Section 48-20-270. Nothing contained in this chapter and no action or failure to act under this chapter may be construed to impose liability on the State, department, district, or an agency, officer, or employee of the State for the recovery of damages caused by the action or failure to act."
Name revised; commission changed to department
SECTION 1225. Section 48-20-280 of the 1976 Code is amended to read:
"Section 48-20-280. The provisions of this chapter do not apply to those activities of the Department of Transportation , nor of a person acting under contract with the department, on highway rights-of-way or borrow pits maintained solely in connection with the construction, repair, and maintenance of the public road systems of the State. This exemption does not become effective until the department has adopted reclamation standards applying to those activities and the standards have been approved by the council. At the discretion of the department, the provisions of this chapter may apply to mining on federal lands."
Membership revised
SECTION 1226. Section 48-21-20(b) of the 1976 Code is amended to read:
"(b) The council shall be composed of eleven members. One member shall be the State Geologist and one member shall be the Director of the Department of Commerce or his designee. Three members, appointed by the Governor with the advice and consent of the Senate, shall be representatives of mining industries; three members, appointed by the Governor with the advice and consent of the Senate, shall be representatives of nongovernmental conservation interests; two members, appointed by the Governor with the advice and consent of the Senate, shall be representatives of the South Carolina Water Resources Commission or Department of Health and Environmental Control who shall be knowledgeable in the principles of water and air resources management; and one member, appointed by the Governor, shall be his official representative to the Interstate Mining Compact Commission. Any public official appointed to the council shall serve ex officio. The term of office for the Director of the Department of Commerce or his designee and the Governor's official representative to the Interstate Mining Compact Commission shall be coterminous with that of the Governor. Of the remaining eight members appointed by the Governor, six shall be appointed for terms of six years, two shall be appointed for terms of two years and beginning July 1, 1976, the term of office for all new appointments and reappointments to these eight positions shall be for four years. The term of each member of the council shall expire on June thirtieth of the year in which his term expires. Any vacancy occurring on the council by death, resignation or otherwise shall be filled for the unexpired term of the person creating the vacancy by the Governor."
Membership revised; commission changed to department; department name revised
SECTION 1227. Section 48-21-20 of the 1976 Code is amended to read:
"Section 48-21-20. (a) The `mining council' is established in the office of the Governor. The council is the advisory body referred to in Article V(a) of the Interstate Mining Compact. Members of the council and the Governor's alternate on the Interstate Mining Commission shall receive the per diem, mileage, and subsistence allowed by law for members of state boards, committees, and commissions.
(b) The council shall be composed of eleven members. One member shall be the State Geologist and one member shall be the Director of the Department of Commerce or his Designee. Three members, appointed by the Governor with the advice and consent of the Senate, shall be representatives of mining industries; three members, appointed by the Governor with the advice and consent of the Senate, shall be representatives of nongovernmental conservation interests; two members, appointed by the Governor with the advice and consent of the Senate, shall be representatives of the Department of Health and Environmental Control who shall be knowledgeable in the principles of water and air resources management; and one member, appointed by the Governor, shall be his official representative to the Interstate Mining Compact Commission. Any public official appointed to the council shall serve ex officio. The term of office for the Director of the Department of Commerce or his designee and the Governor's official representative to the Interstate Mining Compact Commission shall be coterminous with that of the Governor. Of the remaining eight members appointed by the Governor, six shall be appointed for terms of six years, two shall be appointed for terms of two years and beginning July 1, 1976, the term of office for all new appointments and reappointments to these eight positions shall be for four years. The term of each member of the council shall expire on June thirtieth of the year in which his term expires. Any vacancy occurring on the council by death, resignation or otherwise shall be filled for the unexpired term of the person creating the vacancy by the Governor.
(c) In accordance with Article V (i) of the compact, the commission shall file copies of its bylaws and any amendments thereto with the Director Department of Health and Environmental Control."
Geological Mapping Division of Department of Natural Resources created; powers and duties provided for the division and the State Geologist
SECTION 1228. Title 48 of the 1976 Code is amended by adding:
"CHAPTER 22
The State Geologist and Geological Mapping Division
of the Department of Natural Resources Division
Section 48-22-10. The State Geologist and Geological Mapping Division, is hereby created and shall be under the direction of the Department of Natural Resources. The State Geologist shall be appointed by the Director of the Department of Natural Resources. He shall have graduated from an accredited college or university with a full curriculum in geology and shall have had at least five years of practical work experience, academic, governmental or industrial, in geology.
Section 48-22-20. The powers and duties provided for the State Geologist and Geological Mapping Division of the Budget and Control Board are devolved upon the Department of Natural Resources. All property, equipment and personal services monies, including all employee contributions and other fringe benefits used by the Geological Survey within the Division of Research and Statistical Services of the Budget and Control Board prior to the adoption of this section shall be transferred to the Department of Natural Resources.
Section 48-22-30. The State Geologist shall have supervision of the entire work of the division and shall be responsible for its accuracy. He shall travel throughout the State so as to make himself familiar with the geology and mineral resources of each section, and supervise work in progress; shall undertake such field and laboratory work as his time will permit; and shall perform such other duties as properly pertain to his office. He may, as directed by the department, employ geologists, technicians, and such other personnel as may be necessary to conduct the objectives of the division.
Section 48-22-40. In addition to such other duties as may be assigned to it, the division shall:
(1) Conduct field and laboratory studies in geologic reconnaissance, mapping, prospecting for mineral resources, and related gathering of surface and subsurface data. Investigative areas shall include offshore, as well as all onshore, lands in this State.
(2) Provide geologic advice and assistance to other state and local governmental agencies engaged in environmental protection, or in industrial or economic development projects. In addition, the division shall be actively involved in geologic aspects of regional planning and effective land use in the State.
(3) Encourage economic development in the State by disseminating published geologic information as bulletins, maps, economic reports and related series, and also open-file reports, to appropriate governmental agencies and private industry. The division is further encouraged to initiate and maintain appropriate industrial contacts, to promote both the extraction and conservation of South Carolina's earth raw materials, and their manufacture, to the economic improvement of the State.
(4) Provide unsolicited advice, when appropriate, to the Mining Council and its associated state regulatory agency, on geologic and related mining matters in keeping with the intent of the South Carolina Mining Act.
(5) Operate and maintain a central, statewide repository for rock cores, well cuttings and related subsurface samples, and all associated supplemental data. Private firms and public agencies are encouraged to notify the division prior to any exploratory or developmental drilling and coring.
(6) Be the state's official cooperator on topographic mapping; provided, that the Federal expenditure for such purposes shall at least equal that of the State, and may conduct cooperative work with appropriate agencies of the United States Government in its geologic activities and investigations.
(7) Provide a minerals research laboratory, related to the identification, extraction, and processing of industrial minerals and minerals of economic potential wherever found throughout the onshore and offshore areas of the State. The minerals research laboratory is encouraged to accept mineral research projects from South Carolina businesses or citizens on a per cost, per unit basis and to encourage expended use of the raw materials of the State.
The minerals research laboratory may accept public and private gifts or funds and may enter into cooperative agreements for the purpose of applied research in the metallic and nonmetallic minerals of this State.
Section 48-22-50. The division shall maintain all unpublished information in its files which shall be open to the public, except in cases where the investigator still has work in progress on a project leading to a publication; or where an industrial firm, interested in possibly locating in the State, asks temporary confidential status for oral and written geologic related information supplied by them or obtained on their properties.
In the latter instance such information may be held in confidence by the division for not more than one year from the date such information was obtained.
Section 48-22-60. The division shall work impartially for the benefit of the public, and no person, firm, or governmental agency may call upon or require the State Geologist or his staff to enter upon any special survey for his or their special benefit.
Section 48-22-70. The South Carolina Geodetic Survey established within the Division of Research and Statistical Services of the Budget and Control Board is hereby transferred to the Department of Natural Resources. The Geodetic Survey is constituted as part of the State Geologist and Geological Mapping Division. The division shall establish horizontal and vertical geodetic control within the State at a density that will effectively provide land and land-related items and records to be referenced to the national horizontal and vertical coordinate system, ensure the accuracy and integrity of new geodetic data entered into the state and national reference system, maintain geodetic files for the State, and disseminate geodetic information as necessary.
Section 48-22-80. The division, under the auspices of the department, shall have the responsibility of coordinating mapping activities in the State to ensure that mapping products are compatible with the South Carolina Coordinate System. As part of this activity, the division shall establish, develop, and promulgate standards for maps and map products to ensure quality, accuracy, and compatibility of mapping products, encourage the development of accurate mapping systems that are compatible with and suitable for incorporation into a standardized statewide mapping system, develop, maintain, and administer programs for funding qualified mapping projects, and serve as the focal point for federal, state, and local mapping programs and activities in South Carolina.
Section 48-22-90. Where county boundaries are ill-defined, unmarked, or poorly marked, the South Carolina Geodetic Survey on a cooperative basis shall assist counties in defining and monumenting the locations of county boundaries and positioning the monuments using geodetic surveys. The South Carolina Geodetic Survey shall act as a mediator between counties to resolve county boundary disputes."
Reference Revised
SECTION 1229. Section 48-27-70 of the 1976 Code is amended to read:
"Section 48-27-70. A secretary to the board shall give a surety bond to the State in such sum as the Director of the Department of Labor, Licensing, and Regulation may determine. The premium on such bond shall be regarded as a proper and necessary expense of the board and shall be paid out of the fund of the Board of Registration for Foresters. The secretary shall receive such salary as the Director of the Department of Labor, Licensing, and Regulation shall determine in addition to the expenses provided for in Section 48-27-40."
Judicial provisions revised
SECTION 1230. Section 48-27-200 of the 1976 Code is amended to read:
"Section 48-27-200. The board may, upon proof that grounds exist that the licensee has committed fraud, deceit, gross negligence, incompetency, or other misconduct in connection with any forestry practice, order the revocation or suspension of a license, publicly or privately reprimand the holder of a license, or take any other action short of revocation or suspension, such as requiring the licensee to undertake additional professional training subject to the direction and supervision of the board. The board may also impose such restraint upon the practice of the licensee as circumstances warrant until the licensee demonstrates to the board adequate professional competence. The board may designate a person to investigate and report to it upon any charges of fraud, deceit, gross negligence, incompetency, or other misconduct in connection with any forestry practice against any registrant as may come to its attention. Any person may prefer charges of fraud, deceit, gross negligence, incompetency, or misconduct in connection with any forestry practice against any registrant. The charges must be in writing and must be filed with the secretary of the board. All charges, unless dismissed by the board as unfounded or trivial, must be heard by the board as soon as a thorough investigation may be made and a hearing scheduled. The time and place for the hearing must be fixed by the board, and a copy of the charges, together with a notice of the time and place of the hearing, must be personally served on or mailed to the last known address of the registrant at least thirty days before the date fixed for the hearing. At any hearing the accused registrant may appear personally and by counsel, to cross-examine witnesses appearing against him, and to produce evidence and witnesses in his own defense. Any registrant whose license has been sanctioned may apply for a review of the proceedings with reference to the sanction of his license before an Administrative Law Judge as provided under Chapter 23 of Title 1. The review must be upon the record made before the board. Petition for review of this act of the board must be served upon the board within thirty days from the date of the service of the order or the decision of the board upon the person. Upon service upon it of a petition for review, the board shall within thirty days certify the record made before it to an Administrative Law Judge as provided under Chapter 23 of Title 1."
Name changed
SECTION 1231. Section 48-30-30A.(5) of the 1976 Code is amended to read:
"(5) `Department of Revenue and Taxation' shall mean the South Carolina Department of Revenue and Taxation."
Name changed
SECTION 1232. Section 48-30-50 of the 1976 Code is amended to read:
"Section 48-30-50. 1. The Department of Revenue and Taxation shall develop the necessary administrative procedures to collect the assessment, collect the assessment from primary forest product processors, deposit funds collected from the assessment in the forest renewal fund and audit the records of processors to determine compliance with the provisions of this chapter.
2. The State Forester shall provide quarterly to the Department of Revenue and Taxation lists of processors subject to the assessment, advise the Department of Revenue and Taxation of the appropriate methods to convert measurements of primary forest products by systems other than those authorized in this chapter, establish in September the estimated total assessment that shall be collectable in the next budget period and inform the Budget and Control Board and the General Assembly and notify, within thirty days of certification of the state budget, the Department of Revenue and Taxation of the need to collect the assessment for the period covered by the approved budget.
The Department of Revenue and Taxation shall be reimbursed for those expenditures incurred as a cost of collecting the assessment for the forest renewal fund. This amount shall be transferred from the forest renewal fund in equal increments at the end of each quarter of the fiscal year to the Department of Revenue and Taxation. This amount shall not exceed fifty thousand dollars annually."
Name changed
SECTION 1233. Section 48-30-70 of the 1976 Code is amended to read:
"Section 48-30-70. The assessment shall be levied against the processor of the primary forest product.
It shall be submitted on a quarterly basis of the state's fiscal year due and payable the twenty-fifth of the month following the end of each quarter.
It shall be remitted to the Department of Revenue and Taxation, by check or money order, with such production reports as may be required by the Department of Revenue and Taxation.
The processor shall maintain for a period of three fiscal years and make available to the Department of Revenue and Taxation such production records necessary to verify proper reporting and payment of revenue due the forest renewal fund. The production reports of the various processors shall be used only for assessment purposes. Production information on an individual processor basis shall not be made a part of the public record.
Any official or employee of the State who discloses information obtained from a production report, except as may be necessary for administration and collection of the assessment, or in the performance of official duties, or in administrative or judicial proceedings related to the levy of collection of the assessment, shall be deemed guilty of a misdemeanor and upon conviction shall be fined not more than two hundred dollars or imprisoned not more than thirty days."
Name changed
SECTION 1234. Section 48-30-80 of the 1976 Code is amended to read:
"Section 48-30-80. The Department of Revenue and Taxation shall enforce collection of the primary forest product assessment in accordance with statutory remedies and procedures pertaining to collection of revenue by it."
Coastal Division of Department of Health and Environmental Control
SECTION 1235. Chapter 39 of Title 48 of the 1976 Code is amended to read:
"Chapter 39
Coastal Tidelands and Wetlands
Section 48-39-10. As used in this chapter:
(A) `Applicant' means any person who files an application for a permit under the provisions of this chapter.
(B) `Coastal zone' means all coastal waters and submerged lands seaward to the State's jurisdictional limits and all lands and waters in the counties of the State which contain any one or more of the critical areas. These counties are Beaufort, Berkeley, Charleston, Colleton, Dorchester, Horry, Jasper and Georgetown.
(C) `Division' means the Coastal Division of the South Carolina Department of Health and Environmental Control.
(D) `CDPS' means Coastal Division Permitting Staff.
(E) `Saline waters' means those waters which contain a measurable quantity of sea water, at least one part chloride ion per thousand.
(F) `Coastal waters' means the navigable waters of the United States subject to the ebb and flood of the tide and which are saline waters, shoreward to their mean high-water mark. Provided, however, that the department may designate boundaries which approximate the mean extent of saline waters until such time as the mean extent of saline waters can be determined scientifically.
(G) `Tidelands' means all areas which are at or below mean high tide and coastal wetlands, mudflats, and similar areas that are contiguous or adjacent to coastal waters and are an integral part of the estuarine systems involved. Coastal wetlands include marshes, mudflats, and shallows and means those areas periodically inundated by saline waters whether or not the saline waters reach the area naturally or through artificial water courses and those areas that are normally characterized by the prevalence of saline water vegetation capable of growth and reproduction. Provided, however, nothing in this definition shall apply to wetland areas that are not an integral part of an estuarine system. Further, until such time as the exact geographic extent of this definition can be scientifically determined, the department shall have the authority to designate its approximate geographic extent.
(H) `Beaches' means those lands subject to periodic inundation by tidal and wave action so that no nonlittoral vegetation is established.
(I) `Primary ocean front sand dunes' means those dunes which constitute the front row of dunes adjacent to the Atlantic Ocean.
(J) `Critical area' means any of the following:
(1) coastal waters;
(2) tidelands;
(3) beaches;
(4) beach/dune system which is the area from the mean high-water mark to the setback line as determined in Section 48-39-280.
(K) `Person' means any individual, organization, association, partnership, business trust, estate trust, corporation, public or municipal corporation, county, local government unit, public or private authority and shall include the State of South Carolina, its political subdivisions and all its departments, boards, bureaus or other agencies, unless specifically exempted by this chapter.
(L) `Estuarine sanctuary' means a research area designated as an estuarine sanctuary by the Secretary of Commerce.
(M) `Marine sanctuary' means any water and wetland areas designated as a marine sanctuary by the Secretary of Commerce.
(N) `Minor development activities' means the construction, maintenance, repair or alteration of any private piers or erosion control structure, the construction of which does not involve dredge activities.
(O) `Dredging' means the removal or displacement by any means of soil, sand, gravel, shells or other material, whether of intrinsic value or not, from any critical area.
(P) `Filling' means either the displacement of saline waters by the depositing into critical areas of soil, sand, gravel, shells or other material or the artificial alteration of water levels or water currents by physical structure, drainage ditches or otherwise.
(Q) `Submerged lands' means those river, creek and ocean bottoms lying below mean low-water mark.
(R) `Oil' means crude petroleum oil and all other hydrocarbons, regardless of specific gravity, that are produced in liquid form by ordinary production methods, but does not include liquid hydrocarbons that were originally in a gaseous phase in the reservoir.
(S) `Gas' means all natural gas and all other fluid hydrocarbons not hereinabove defined as oil, including condensate because it originally was in the gaseous phase in the reservoir.
(T) `Fuel' means gas and oil.
(U) `Emergency' means any unusual incident resulting from natural or unnatural causes which endanger the health, safety or resources of the residents of the State, including damages or erosion to any beach or shore resulting from a hurricane, storm or other such violent disturbance.
(V) `Department' means the South Carolina Department of Health and Environmental Control.
(W) `Board' means the board of the department.
Section 48-39-20. The General Assembly finds that:
(A) The coastal zone is rich in a variety of natural, commercial, recreational and industrial resources of immediate and potential value to the present and future well-being of the State.
(B) The increasing and competing demands upon the lands and waters of our coastal zone occasioned by population growth and economic development, including requirements for industry, commerce, residential development, recreation, extraction of mineral resources and fossil fuels, transportation and navigation, waste disposal and harvesting of fish, shellfish and other living marine resources have resulted in the decline or loss of living marine resources, wildlife, nutrient-rich areas, permanent and adverse changes to ecological systems, decreasing open space for public use and shoreline erosion.
(C) A variety of federal agencies presently operate land use controls and permit systems in the coastal zone. South Carolina can only regain control of the regulation of its critical areas by developing its own management program. The key to accomplishing this is to encourage the state and local governments to exercise their full authority over the lands and waters in the coastal zone.
(D) The coastal zone and the fish, shellfish, other living marine resources and wildlife therein, may be ecologically fragile and consequently extremely vulnerable to destruction by man's alterations.
(E) Important ecological, cultural, natural, geological and scenic characteristics, industrial, economic and historical values in the coastal zone are being irretrievably damaged or lost by ill-planned development that threatens to destroy these values.
(F) In light of competing demands and the urgent need to protect and to give high priority to natural systems in the coastal zone while balancing economic interests, present state and local institutional arrangements for planning and regulating land and water uses in such areas are inadequate.
Section 48-39-30. (A) The General Assembly declares the basic state policy in the implementation of this chapter is to protect the quality of the coastal environment and to promote the economic and social improvement of the coastal zone and of all the people of the State.
(B) Specific state policies to be followed in the implementation of this chapter are:
(1) To promote economic and social improvement of the citizens of this State and to encourage development of coastal resources in order to achieve such improvement with due consideration for the environment and within the framework of a coastal planning program that is designed to protect the sensitive and fragile areas from inappropriate development and provide adequate environmental safeguards with respect to the construction of facilities in the critical areas of the coastal zone;
(2) To protect and, where possible, to restore or enhance the resources of the State's coastal zone for this and succeeding generations;
(3) To formulate a comprehensive tidelands protection program;
(4) To formulate a comprehensive beach erosion and protection policy including the protection of necessary sand dunes.
(5) To encourage and assist state agencies, counties, municipalities and regional agencies to exercise their responsibilities and powers in the coastal zone through the development and implementation of comprehensive programs to achieve wise use of coastal resources giving full consideration to ecological, cultural and historic values as well as to the needs for economic and social development and resources conservation.
(C) In the implementation of the chapter, no government agency shall adopt a rule or regulation or issue any order that is unduly restrictive so as to constitute a taking of property without the payment of just compensation in violation of the Constitution of this State or of the United States.
(D) Critical areas shall be used to provide the combination of uses which will insure the maximum benefit to the people, but not necessarily a combination of uses which will generate measurable maximum dollar benefits. As such, the use of a critical area for one or a combination of like uses to the exclusion of some or all other uses shall be consistent with the purposes of this chapter.
(E) It shall be the policy of the State to coordinate the coastal planning and management program effort with other coastal states and organizations of coastal states.
Section 48-39-35. The Coastal Division of the Department of Health and Environmental Control is created July 1, 1994.
Section 48-39-40. (A) On July 1, 1994, there is created the Coastal Zone Management Appellate Panel which consists of fourteen members, which shall act as an advisory council to the Department of Health and Environmental Control. The members of the panel shall be constituted as follows: eight members, one from each coastal zone county, to be elected by a majority vote of the members of the House of Representatives and a majority vote of the Senate members representing the county from three nominees submitted by the governing body of each coastal zone county, each House or Senate member to have one vote; six members, one from each of the congressional districts of the State, to be elected by a majority vote of the members of the House of Representatives and the Senate representing the counties in that district, each House or Senate member to have one vote. The panel shall elect a chairman, vice-chairman, and other officers it considers necessary.
(B) Terms of all members are for four years and until successors are appointed and qualify. Members from congressional districts serve terms of two years only as determined by lot at the first meeting of the panel. Vacancies must be filled in the original manner of selection for the remainder of the unexpired term.
(C) On July 1, 1994, members of the South Carolina Coastal Council, become members of the South Carolina Coastal Zone Appellate Panel and continue to serve until their terms expire. Upon the expiration of their terms, members must be selected as provided within this section.
Section 48-39-50. The South Carolina Department of Health and Environmental Control shall have the following powers and duties:
(A) To employ the CDPS consisting of, but not limited to, the following professional members: An administrator and other staff members to include those having expertise in biology, civil and hydrological engineering, planning, environmental engineering and environmental law.
(B) To apply for, accept and expend financial assistance from public and private sources in support of activities undertaken pursuant to this chapter and the Federal Coastal zone Management Act of 1972.
(C) To undertake the related programs necessary to develop and recommend to the Governor and the General Assembly a comprehensive program designed to promote the policies set forth in this chapter.
(D) To hold public hearings and related community forums and afford participation in the development of management programs to all interested citizens, local governments and relevant state and federal agencies, port authorities and other interested parties.
(E) To promulgate necessary rules and regulations to carry out the provisions of this chapter.
(F) To administer the provisions of this chapter and all rules, regulations and orders promulgated under it.
(G) To examine, modify, approve or deny applications for permits for activities covered by the provisions of this chapter.
(H) To revoke and suspend permits of persons who fail or refuse to carry out or comply with the terms and conditions of the permit.
(I) To enforce the provisions of this chapter and all rules and regulations promulgated by the department and institute or cause to be instituted in courts of competent jurisdiction of legal proceedings to compel compliance with the provisions of this chapter.
(J) To manage estuarine and marine sanctuaries and regulate all activities therein, including the regulation of the use of the coastal waters located within the boundary of such sanctuary.
(K) To establish, control and administer pipeline corridors and locations of pipelines used for the transportation of any fuel on or in the critical areas.
(L) To direct and coordinate the beach and coastal shore erosion control activities among the various state and local governments.
(M) To implement the state policies declared by this chapter.
(N) To encourage and promote the cooperation and assistance of state agencies, coastal regional councils of government, local governments, federal agencies and other interested parties.
(O) To exercise all incidental powers necessary to carry out the provisions of this chapter.
(P) To coordinate the efforts of all public and private agencies and organizations engaged in the making of tidal surveys of the coastal zone of this State with the object of avoiding unnecessary duplication and overlapping.
(Q) To serve as a coordinating state agency for any program of tidal surveying conducted by the federal government.
(R) To develop and enforce uniform specifications and regulations for tidal surveying.
(S) To monitor, in coordination with the South Carolina Department of Natural Resources, the waters of the State for oil spills. If such Department observes an oil spill in such waters it shall immediately report such spill to the South Carolina Department of Health and Environmental Control, the United States Coast Guard and Environmental Protection Agency. This in no way negates the responsibility of the spiller to report a spill.
(T) To direct, as the designated state agency to provide liaison to the regional response team, pursuant to Section 1510.23 of the National Contingency Plan, state supervised removal operations of oil discharged into the waters within the territorial jurisdiction of this State and entering such waters after being discharged elsewhere within the State, and to seek reimbursement from the National Contingency Fund for removal operations cost expended by it and all other agencies and political subdivisions including county, municipal and regional governmental entities in removing such oil as provided for in Section 311(C)(2) of the Federal Water Pollution Control Act.
(U) To act as advocate, where the department deems such action appropriate, on behalf of any person who is granted a permit for a specific development by the department but is denied a permit by a federal agency for the same specific development.
(V) To delegate any of its powers and duties to the CDPS.
Section 48-39-60. When requested by the department, the South Carolina Department of Natural Resources shall provide additional staff for the department, including any additional enforcement officers, necessary to administer the provisions of this chapter and for which funds are available.
Section 48-39-70. (A) All other state and local agencies and commissions shall cooperate with the department in the administration of enforcement of this chapter. All agencies currently exercising regulatory authority in the coastal zone shall administer such authority in accordance with the provisions of this chapter and rules and regulations promulgated thereunder.
(B) The department, in the discharge of its duties may administer oaths and affirmations, take depositions and issue subpoenas to compel the attendance of witnesses and the production of books, papers, correspondence, memoranda and other records deemed necessary in connection with the work of the department. The only exception shall be, that information considered proprietary by the applicant. If in the opinion of the department a proper decision cannot be rendered without the submission of such proprietary information, the department shall be empowered to execute an agreement on confidentiality with the applicant and such information shall not be made a part of the public record of current or future proceedings.
(C) In case the contumacy by any person or refusal to obey a subpoena issued to any person, any circuit court of this State or circuit judge thereof within the jurisdiction of which such person guilty of contumacy or refusal to obey is found, resides or transacts business, upon application by the department, may issue to such person an order requiring him to appear before the department to produce evidence if so ordered or give testimony touching the matter under investigation. Any failure to obey an order of the court may be punished as a contempt hereof. Subpoenas shall be issued in the name of the department and signed by the department director. Subpoenas shall be issued to such persons as the department may designate.
Section 48-39-80. The department shall develop a comprehensive coastal management program, and thereafter have the responsibility for enforcing and administering the program in accordance with the provisions of this chapter and any rules and regulations promulgated under this chapter. In developing the program the department shall:
(A) Provide a regulatory system which the department shall use in providing for the orderly and beneficial use of the critical areas.
(B) In devising the management program the department shall consider all lands and waters in the coastal zone for planning purposes. In addition, the department shall:
(1) Identify present land uses and coastal resources.
(2) Evaluate these resources in terms of their quality, quantity and capability for use both now and in the future.
(3) Determine the present and potential uses and the present and potential conflicts in uses of each coastal resource.
(4) Inventory and designate areas of critical state concern within the coastal zone, such as port areas, significant natural and environmental, industrial and recreational areas.
(5) Establish broad guidelines on priority of uses in critical areas.
(6) Provide for adequate consideration of the local, regional, state and national interest involved in the siting of facilities for the development, generation, transmission and distribution of energy, adequate transportation facilities and other public services necessary to meet requirements which are other than local in nature.
(7) Provide for consideration of whether a proposed activity of an applicant for a federal license or permit complies with the State's coastal zone program and for the issuance of notice to any concerned federal agency as to whether the State concurs with or objects to the proposed activity.
(8) Provide for a review process of the management plan and alterations thereof that involves local, regional, state and federal agencies.
(9) Conduct other studies and surveys as may be required, including the beach erosion control policy as outlined in this chapter.
(10) Devise a method by which the permitting process shall be streamlined and simplified so as to avoid duplication.
(11) Develop a system whereby the department shall have the authority to review all state and federal permit applications in the coastal zone, and to certify that these do not contravene the management plan.
(C) Provide for a review process of the management program and alterations that involve interested citizens as well as local, regional, state and federal agencies.
(D) Consider the planning and review of existing water quality standards and classifications in the coastal zone.
(E) Provide consideration for nature-related uses of critical areas, such as aquaculture, mariculture, waterfowl and wading bird management, game and nongame habitat protection projects and endangered flora and fauna.
Section 48-39-85. (A) In order to promote safe and clean litter-free beaches, the department shall develop a program to be known as `Adopt-A-Beach', whereby an industry or a private civic organization may adopt one mile, or other feasible distance, of South Carolina beach for the sole purpose of controlling litter along that section of beach.
(B) Included in the responsibilities of any industry or private civic organization which chooses to participate in the program shall be the following:
(1) development of a functional plan to influence and encourage the public to improve the appearance of the adopted section of beach;
(2) a general cleanup of the area at least twice a year; and
(3) assistance to the department in securing media coverage for the program.
Section 48-39-90. (A) The department, on thirty days' notice, shall hold statewide public hearings on the proposed coastal zone management plan to obtain the views of all interested parties, particularly all interested citizens, agencies, local governments, regional organizations and port authorities.
(B) All department documents associated with such hearings shall be conveniently available to the public for review and study at least thirty days prior to a hearing. A report on each hearing shall be prepared and made available to the public within forty-five days of such hearing.
(C) After sufficient hearings and upon consideration of the views of interested parties the department shall propose a final management plan for the coastal zone to the Governor and the General Assembly.
(D) Upon review and approval of the proposed management plan by the Governor and General Assembly, the proposed plan shall become the final management plan for the State's coastal zone.
(E) Any change in or amendment to the final management plan shall be implemented by following the procedures established in subsections (A), (B), (C) and (D) of this section and upon the review and approval of the Governor and the General Assembly.
Section 48-39-100. (A) The management program specified in Section 48-39-90 shall be developed in complete cooperation with affected local governments in the coastal zone. This cooperation shall include, but not be limited to:
(1) Involvement of local governments or their designees in the management program.
(2) Provision of technical assistance and grants to aid local governments in carrying out their responsibilities under this chapter.
(3) Dissemination of improved informational data on coastal resources to local and regional governmental units.
(4) Recommendations to local and regional governmental units as to needed modifications or alterations in local ordinances that become apparent as a result of the generation of improved and more comprehensive information.
(B) Any city or county that is currently enforcing a zoning ordinance, subdivision regulation or building code, a part of which applies to critical areas, shall submit the elements of such ordinances and regulations applying to critical areas to the department for review. The department shall evaluate such ordinances and plans to determine that they meet the provisions of this chapter and rules and regulations promulgated hereunder. Upon determination and approval by the department, such ordinances and regulations shall be adopted by the department, followed by the department in meeting its permit responsibilities under this chapter and integrated into the Department's Coastal Management Program. Any change or modification in the elements of approved zoning ordinances, subdivision regulations or building codes applying to critical areas shall be disapproved by the department if it is not in compliance with the provisions of this chapter and rules and regulations promulgated hereunder.
(C) Any city or county that is not currently enforcing ordinances or regulations on the critical areas within its jurisdiction at its option may elect to develop a management program for such critical areas by notifying the department of its intent within one hundred and eighty days following the twenty-fourth day of May, 1977. Such proposed ordinances and regulations applying to critical areas shall be subject to the process specified in Section 48-39-100(B).
(D) Any county or city may delegate some or all of its responsibilities in developing a coastal management program for critical areas under its jurisdiction to the regional council of government of which it is a part, provided the county or city has notified the department in writing at least thirty days prior to the date on which such action is to be taken.
Section 48-39-110. The South Carolina State Ports Authority shall prepare and submit to the department a management plan for port and harbor facilities and navigation channels. Upon approval by the department of such management plan it shall become part of the comprehensive coastal management program developed by the department. The South Carolina State Ports Authority shall include in the management plan a designation of the geographical area appropriate for use by public and private port and harbor facilities and military and naval facilities and submit this to the department for approval.
Section 48-39-120. (A) The department shall develop and institute a comprehensive beach erosion control policy that identifies critical erosion areas, evaluates the benefits and costs of erosion control structures funded by the State, considers the dynamic littoral and offshore drift systems, sand dunes and like items.
(B) The department for and on behalf of the State may issue permits for erosion control structures following the provisions of this section and Sections 48-39-140 and 48-39-150, on or upon the tidelands and coastal waters of this State as it may deem most advantageous. Provided, however, that no property rebuilt or accreted as a result of natural forces or as a result of a permitted structure shall exceed the original property line or boundary. Provided, further, that no person or governmental agency may develop ocean front property accreted by natural forces or as the result of permitted or nonpermitted structures beyond the mean high water mark as it existed at the time the ocean front property was initially developed or subdivided, and such property shall remain the property of the State held in trust for the people of the State.
(C) The department shall have the authority to remove all erosion control structures which have an adverse effect on the public interest.
(D) The department is authorized for and in behalf of the State to accept such federal monies for beach or shore erosion control in areas to which the public has full and complete access as are available and to sign all necessary agreements and to do and perform all necessary acts in connection therewith to effectuate the intent and purposes of such federal aid.
(E) If a beach or shore erosion emergency is declared by the department, the State, acting through the department, may spend whatever state funds are available to alleviate beach or shore erosion in areas to which the public has full and complete access, including any funds which may be specifically set aside for such purposes.
(F) The department, for and on behalf of the State, may issue permits not otherwise provided by state law, for erosion and water drainage structure in or upon the tidelands, submerged lands and waters of this State below the mean high-water mark as it may deem most advantageous to the State for the purpose of promoting the public health, safety and welfare, the protection of public and private property from beach and shore destruction and the continued use of tidelands, submerged lands and waters for public purposes.
Section 48-39-130. (A) Ninety days after July 1, 1977, no person shall utilize a critical area for a use other than the use the critical area was devoted to on such date unless he has first obtained a permit from the department.
(B) Within sixty days of July 1, 1977, the department shall publish and make available the interim rules and regulations it will follow in evaluating permit applications. These interim rules and regulations shall be used in evaluating and granting or denying all permit applications until such time as the final rules and regulations are adopted in accordance with this section and Chapter 23 of Title 1. Within one hundred and twenty days of July 1, 1977 the department shall publish and make available to local and regional governments and interested citizens for review and comment a draft of the final rules and regulations it will follow in evaluating permit applications. Sixty days after making such guidelines available the department shall hold a public hearing affording all interested persons an opportunity to comment on such guidelines. Following the public hearing the department, pursuant to the Administrative Procedures Act, shall in ninety days publish final rules and regulations. Provided, however, the interim rules and regulations shall not be subject to the provisions of Chapter 23 of Title 1.
(C) Ninety days after July 1, 1977 no person shall fill, remove, dredge, drain or erect any structure on or in any way alter any critical area without first obtaining a permit from the department. Provided, however, that a person who has legally commenced a use such as those evidenced by a state permit, as issued by the Budget and Control Board, or a project loan approved by the rural electrification administration or a local building permit or has received a United States Corps of Engineers or Coast Guard permit, where applicable, may continue such use without obtaining a permit. Any person may request the department to review any project or activity to determine if he is exempt under this section from the provisions of this chapter. The department shall make such determinations within forty-five days from the receipt of any such request.
(D) It shall not be necessary to apply for a permit for the following activities:
(1) The accomplishment of emergency orders of an appointed official of a county or municipality or of the State, acting to protect the public health and safety, upon notification to the department. However, with regard to the beach/dune critical area, only the use of sandbags, sandscraping, or renourishment, or a combination of them, in accordance with guidelines provided by the department is allowed pursuant to this item.
(2) Hunting, erecting duckblinds, fishing, shellfishing and trapping when and where otherwise permitted by law; the conservation, repletion and research activities of state agencies and educational institutions or boating or other recreation provided that such activities cause no material harm to the flora, fauna, physical or aesthetic resources of the area.
(3) The discharge of treated effluent as permitted by law; provided, however, that the department shall have the authority to review and comment on all proposed permits that would affect critical areas.
(4) Dredge and fill performed by the United States Corps of Engineers for the maintenance of the harbor channels and the collection and disposal of the materials so dredged; provided, however, that the department shall have authority to review and certify all such proposed dredge and fill activities.
(5) Construction of walkways over sand dunes in accordance with regulations promulgated by the department.
(6) Emergency repairs to an existing bank, dike, fishing pier, or structure, other than oceanfront erosion control structures or devices, which has been erected in accordance with federal and state laws or provided for by general law or acts passed by the General Assembly, if notice is given in writing to the department within seventy-two hours from the onset of the needed repairs.
(7) Maintenance and repair of drainage and sewer facilities constructed in accordance with federal or state laws and normal maintenance and repair of any utility or railroad.
(8) Normal maintenance or repair to any pier or walkway provided that such maintenance or repair not involve dredge or fill.
(9) Construction or maintenance of a major utility facility where the utility has obtained a certificate for such facility under `The Utility Facility Siting and Environmental Protection Act', Chapter 33 of Title 58 of the 1976 Code. Provided, however, that the South Carolina Public Service Commission shall make the department a party to certification proceedings for utility facilities within the coastal zone.
Section 48-39-140. (A) Any person who wishes may submit development plans to the department for preliminary review. If a permit is necessary, the department will make every effort to assist the applicant in expediting the permit application.
(B) Each application for a permit shall be filed with the department and shall include:
(1) Name and address of the applicant.
(2) A plan or drawing showing the applicant's proposal and the manner or method by which the proposal shall be accomplished.
(3) A plat of the area in which the proposed work will take place.
(4) A copy of the deed, lease or other instrument under which the applicant claims title, possession or permission from the owner of the property, to carry out the proposal.
(5) A list of all adjoining landowners and their addresses or a sworn affidavit that with due diligence such information is not ascertainable.
(C) The department within thirty days of receipt of an application for a permit shall notify, in writing, interested agencies, all adjoining landowners, local government units in which the land is located and other interested persons of the application and shall indicate the nature of the applicant's proposal. Public notice shall be given at least once by advertisement in state and local newspapers of general circulation in the area concerned. The department may hold a public hearing on applications which have any effect on a critical area if it deems a hearing necessary. The public hearing shall be held in the county where the land is located and if in more than one county the department shall determine in which county to hold the hearing or may hold hearings in both counties.
Provided, all interested agencies, all adjoining landowners, local government units and other interested persons shall have thirty days to file a written comment to such application after receipt of any such notice by the department.
Section 48-39-145. (A) The Department may charge an administrative fee upon application for a permit for alteration of any critical area as defined in Section 48-39-10. Applications for permits which are noncommercial/nonindustrial in nature and provide personal benefits that have no connection with a commercial/industrial enterprise shall be charged an administrative fee not to exceed fifty dollars. A reasonable fee, determined by the department, will be charged for permit applications when the planned or ultimate purpose of the activity is commercial or industrial in nature.
(B) Any fees collected under this provision shall be forwarded to the State Treasurer for credit to the general fund.
Section 48-39-150. (A) In determining whether a permit application is approved or denied the department shall base its determination on the individual merits of each application, the policies specified in Sections 48-39-20 and 48-39-30 and be guided by the following general considerations:
(1) The extent to which the activity requires a waterfront location or is economically enhanced by its proximity to the water.
(2) The extent to which the activity would harmfully obstruct the natural flow of navigable water. If the proposed project is in one or more of the State's harbors or in a waterway used for commercial navigation and shipping or in an area set aside for port development in an approved management plan, then a certificate from the South Carolina State Ports Authority declaring the proposed project or activity would not unreasonably interfere with commercial navigation and shipping must be obtained by the department prior to issuing a permit.
(3) The extent to which the applicant's completed project would affect the production of fish, shrimp, oysters, crabs or clams or any marine life or wildlife or other natural resources in a particular area including but not limited to water and oxygen supply.
(4) The extent to which the activity could cause erosion, shoaling of channels or creation of stagnant water.
(5) The extent to which the development could affect existing public access to tidal and submerged lands, navigable waters and beaches or other recreational coastal resources.
(6) The extent to which the development could affect the habitats for rare and endangered species of wildlife or irreplaceable historic and archeological sites of South Carolina's coastal zone.
(7) The extent of the economic benefits as compared with the benefits from preservation of an area in its unaltered state.
(8) The extent of any adverse environmental impact which cannot be avoided by reasonable safeguards.
(9) The extent to which all feasible safeguards are taken to avoid adverse environmental impact resulting from a project.
(10) The extent to which the proposed use could affect the value and enjoyment of adjacent owners.
(B) After considering the views of interested agencies, local governments and persons, and after evaluation of biological and economic considerations, if the department finds that the application is not contrary to the policies specified in this chapter, it shall issue to the applicant a permit. The permit may be conditioned upon the applicant's amending the proposal to take whatever measures the department feels are necessary to protect the public interest. At the request of twenty citizens or residents of the county or counties affected, the department shall hold a public hearing on any application which has an effect on a critical area, prior to issuing a permit. Such public hearings shall be open to all citizens of the State. When applicable, joint public hearings will be held in conjunction with any such hearings required by the U. S. Army Corps of Engineers. On any permit application pertaining to a specific development which has been approved by the department, the department may support the applicant with respect to any federal permit applications pertaining to the same specific development.
(C) The department shall act upon an application for a permit within ninety days after the application is filed. Provided, however, that in the case of minor developments, as defined in Section 48-39-10, the department shall have the authority to approve such permits and shall act within thirty days. In the event a permit is denied the department shall state the reasons for such denial and such reasons must be in accordance with the provisions of this chapter.
(D) Any applicant having a permit denied or any person adversely affected by the granting of the permit has the right of direct appeal from the decision of the Administrative Law Judge to the Coastal Zone Management Appellate Panel. Any applicant having a permit denied may challenge the validity of any or all reasons given for denial.
(E) Any permit may be revoked for noncompliance with or violation of its terms after written notice of intention to do so has been given the holder and the holder given an opportunity to present an explanation to the department.
(F) Work authorized by permits issued hereunder shall be completed within three years after the date of issuance of the permit. The time limit may be extended for good cause showing that due diligence toward completion of the work has been made as evidenced by significant work progress.
Section 48-39-160. The circuit court of the county in which the affected critical area or any part thereof lies shall have jurisdiction to restrain a violation of this chapter at the suit of the department, the Attorney General or any person adversely affected. In the event the affected critical area lies in more than one county, jurisdiction shall be in the circuit court of any county in which any part of the area lies. In the same action the circuit court having jurisdiction over the affected area may require such area to be restored to its original condition, if possible, and environmentally desirable. In the alternative, the department may complete the restoration at the expense of the person altering the area in which case suit for recovery of the amount so expended may be brought in any court having jurisdiction to restrain a violation. No bond shall be required as a condition of the granting of a temporary restraining order under this section, except that the court may in its discretion require that a reasonable bond be posted by any person requesting the court to restrain a violation of this chapter.
Section 48-39-170. (A) Any person violating any provision of this chapter is guilty of a misdemeanor and, upon conviction, must be imprisoned not more than six months or fined not more than five thousand dollars, or both, for the first offense, and imprisoned not more than one year, or fined not more than ten thousand dollars, or both, for each subsequent offense.
(B) Any violation of any provision of this chapter involving five yards square (225 square feet) or less of critical area may be treated as a minor violation, the penalty for which shall be a fine of not less than fifty dollars nor more than two hundred dollars. The enforcement officers of the Natural Resources Enforcement Division of the South Carolina Department of Natural Resources may serve warrants under this provision and otherwise enforce this chapter. The magistrates of this State have jurisdiction over minor violations of this chapter. Each day of noncompliance with any order issued relative to a minor violation or noncompliance with any permit, regulation, standard, or requirement relative to a minor violation shall constitute a separate offense; provided, however, that violations which involve the construction or repair of water control structures shall not be considered minor violations regardless of the area involved.
(C) Any person who is determined to be in violation of any provision of this chapter by the department shall be liable for, and may be assessed by the department for, a civil penalty of not less than one hundred dollars nor more than one thousand dollars per day of violation. Whenever the department determines that any person is in violation of any permit, regulation, standard, or requirement under this chapter, the department may issue an order requiring such person to comply with such permit, regulation, standard, or requirement, including an order requiring restoration when deemed environmentally appropriate by the department; in addition, the department may bring a civil enforcement action under this section as well as seeking an appropriate injunctive relief under Section 48-39-160.
(D) All penalties assessed and collected pursuant to this section shall be deposited in the general fund of the State.
Section 48-39-180. Any applicant whose permit application has been finally denied, revoked, suspended or approved subject to conditions of the department by the Coastal Zone Management Appellate Panel, or any person adversely affected by the permit, may, within twenty days after receiving notice thereof, file petition in the circuit court having jurisdiction over the affected land for a review of the department's action `de novo' or to determine whether the department's action so restricts or otherwise affects the use of the property as to deprive the owner of its existing practical use and is an unreasonable exercise of the State's police power because the action constitutes the equivalent of taking without compensation. If the court finds the action to be an unreasonable exercise of the police power it shall enter a finding that the action shall not apply to the land of the plaintiff, or in the alternative, that the department shall pay reasonable compensation for the loss of use of the land. The use allowed by any permit issued under this chapter may, in the discretion of the court, be stayed pending decision on all appeals that may be taken. The circuit court may in its discretion require that a reasonable bond be posted by any person. It is specifically intended that any person whose permit application has been denied may have such permit issued by the circuit court having jurisdiction if such person can prove the reasons given for denial to be invalid.
Section 48-39-190. Nothing in this chapter shall affect the status of the title of the State or any person to any land below the mean highwater mark. The State shall in no way be liable for any damages as a result of the erection of permitted works.
Section 48-39-210. The department shall be the only state agency with authority to permit or deny any alteration or utilization within the critical area except for the exemptions granted under Section 48-39-130(D) and such application for a permit shall be acted upon within the time prescribed by this chapter.
Section 48-39-220. (A) Any person claiming an interest in tidelands which, for the purpose of this section, means all lands except beaches in the Coastal zone between the mean high-water mark and the mean low-water mark of navigable waters without regard to the degree of salinity of such waters, may institute an action against the State of South Carolina for the purpose of determining the existence of any right, title or interest of such person in and to such tidelands as against the State. Service of process shall be made upon the secretary of the State Budget and Control Board.
(B) Any party may demand a trial by jury in any such action by serving upon the other party(s) a demand therefor in writing at any time after the commencement of the action and not later than ten (10) days after the service of the last pleading directed to such issue. Such demand may be endorsed upon a pleading of the party.
(C) Nothing contained in this chapter shall be construed to change the law of this State as it exists on July 1, 1977, relative to the right, title, or interest in and to such tidelands, except as set forth in this section.
(D) The Attorney General shall immediately notify the department upon receipt of any private suit made under this section, his response to that suit, and the final disposition of the suit. The department will publish all such notifications in the state register.
Section 48-39-250. The General Assembly finds that:
(1) The beach/dune system along the coast of South Carolina is extremely important to the people of this State and serves the following functions:
(a) protects life and property by serving as a storm barrier which dissipates wave energy and contributes to shoreline stability in an economical and effective manner;
(b) provides the basis for a tourism industry that generates approximately two-thirds of South Carolina's annual tourism industry revenue which constitutes a significant portion of the state's economy. The tourists who come to the South Carolina coast to enjoy the ocean and dry sand beach contribute significantly to state and local tax revenues;
(c) provides habitat for numerous species of plants and animals, several of which are threatened or endangered. Waters adjacent to the beach/dune system also provide habitat for many other marine species;
(d) provides a natural healthy environment for the citizens of South Carolina to spend leisure time which serves their physical and mental well-being.
(2) Beach/dune system vegetation is unique and extremely important to the vitality and preservation of the system.
(3) Many miles of South Carolina's beaches have been identified as critically eroding.
(4) Chapter 39 of Title 48, Coastal Tidelands and Wetlands, prior to 1988, did not provide adequate jurisdiction to the South Carolina Coastal Council to enable it to effectively protect the integrity of the beach/dune system. Consequently, without adequate controls, development unwisely has been sited too close to the system. This type of development has jeopardized the stability of the beach/dune system, accelerated erosion, and endangered adjacent property. It is in both the public and private interests to protect the system from this unwise development.
(5) The use of armoring in the form of hard erosion control devices such as seawalls, bulkheads, and rip-rap to protect erosion-threatened structures adjacent to the beach has not proven effective. These armoring devices have given a false sense of security to beachfront property owners. In reality, these hard structures, in many instances, have increased the vulnerability of beachfront property to damage from wind and waves while contributing to the deterioration and loss of the dry sand beach which is so important to the tourism industry.
(6) Erosion is a natural process which becomes a significant problem for man only when structures are erected in close proximity to the beach/dune system. It is in both the public and private interests to afford the beach/dune system space to accrete and erode in its natural cycle. This space can be provided only by discouraging new construction in close proximity to the beach/dune system and encouraging those who have erected structures too close to the system to retreat from it.
(7) Inlet and harbor management practices, including the construction of jetties which have not been designed to accommodate the longshore transport of sand, may deprive downdrift beach/dune systems of their natural sand supply. Dredging practices which include disposal of beach quality sand at sea also may deprive the beach/dune system of much-needed sand.
(8) It is in the state's best interest to protect and to promote increased public access to South Carolina's beaches for out-of-state tourists and South Carolina residents alike.
(9) Present funding for the protection, management, and enhancement of the beach/dune system is inadequate.
(10) There is no coordinated state policy for post-storm emergency management of the beach/dune system.
(11) A long-range comprehensive beach management plan is needed for the entire coast of South Carolina to protect and manage effectively the beach/dune system, thus preventing unwise development and minimizing man's adverse impact on the system.
Section 48-39-260. In recognition of its stewardship responsibilities, the policy of South Carolina is to:
(1) protect, preserve, restore, and enhance the beach/dune system, the highest and best uses of which are declared to provide:
(a) protection of life and property by acting as a buffer from high tides, storm surge, hurricanes, and normal erosion;
(b) a source for the preservation of dry sand beaches which provide recreation and a major source of state and local business revenue;
(c) an environment which harbors natural beauty and enhances the well-being of the citizens of this State and its visitors;
(d) natural habitat for indigenous flora and fauna including endangered species;
(2) create a comprehensive, long-range beach management plan and require local comprehensive beach management plans for the protection, preservation, restoration, and enhancement of the beach/dune system. These plans must promote wise use of the state's beachfront to include a gradual retreat from the system over a forty-year period;
(3) severely restrict the use of hard erosion control devices to armor the beach/dune system and to encourage the replacement of hard erosion control devices with soft technologies as approved by the department which will provide for the protection of the shoreline without long-term adverse effects;
(4) encourage the use of erosion-inhibiting techniques which do not adversely impact the long-term well-being of the beach/dune system;
(5) promote carefully planned nourishment as a means of beach preservation and restoration where economically feasible;
(6) preserve existing public access and promote the enhancement of public access to assure full enjoyment of the beach by all our citizens including the handicapped and encourage the purchase of lands adjacent to the Atlantic Ocean to enhance public access;
(7) involve local governments in long-range comprehensive planning and management of the beach/dune system in which they have a vested interest;
(8) establish procedures and guidelines for the emergency management of the beach/dune system following a significant storm event.
Section 48-39-270. As used in this chapter:
(1) Erosion control structures or devices include:
(a) seawall: a special type of retaining wall that is designed specifically to withstand normal wave forces;
(b) bulkhead: a retaining wall designed to retain fill material but not to withstand wave forces on an exposed shoreline;
(c) revetment: a sloping structure built along an escarpment or in front of a bulkhead to protect the shoreline or bulkhead from erosion.
(2) Habitable structure means a structure suitable for human habitation including, but not limited to, single or multifamily residences, hotels, condominium buildings, and buildings for commercial purposes. Each building of a condominium regime is considered a separate habitable structure but, if a building is divided into apartments, then the entire building, not the individual apartment, is considered a single habitable structure. Additionally, a habitable structure includes porches, gazebos, and other attached improvements.
(3) Department means the Department of Health and Environmental Control.
(4) Beach nourishment means the artificial establishment and periodic renourishment of a beach with sand that is compatible with the existing beach in a way so as to create a dry sand beach at all stages of the tide.
(5) The beach/dune system includes all land from the mean highwater mark of the Atlantic Ocean landward to the setback line described in Section 48-39-280.
(6) A standard erosion zone is a segment of shoreline which is subject to essentially the same set of coastal processes, has a fairly constant range of profiles and sediment characteristics, and is not influenced directly by tidal inlets or associated inlet shoals.
(7) An inlet erosion zone is a segment of shoreline along or adjacent to tidal inlets which is influenced directly by the inlet and its associated shoals.
(8) Master plan means a document or a map prepared by a developer or a city as a policy guide to decisions about the physical development of the project or community.
(9) Planned development means a development plan which has received local approval for a specified number of dwelling and other units. The siting and size of structures and amenities are specified or restricted within the approval. This term specifically references multifamily or commercial projects not otherwise referenced by the terms, master plan, or planned unit development.
(10) Planned unit development means a residential, commercial, or industrial development, or all three, designed as a unit and approved by local government.
(11) Destroyed beyond repair means that more than sixty-six and two-thirds percent of the replacement value of the habitable structure or pool has been destroyed. If the owner disagrees with the appraisal of the department, he may obtain an appraisal to evaluate the damage to the building or pool. If the appraisals differ, then the two appraisers must select a third appraiser. If the two appraisers are unable to select a third appraiser, the clerk of court of the county where the structure lies must make the selection. Nothing in this section prevents a court of competent jurisdiction from reviewing, de novo, the appraisal upon the petition of the property owner.
(12) Pool is a structure designed and used for swimming and wading.
(13) Active beach is that area seaward of the escarpment or the first line of stable natural vegetation, whichever first occurs, measured from the ocean.
Section 48-39-280. (A) A forty-year policy of retreat from the shoreline is established. The department must implement this policy and must utilize the best available scientific and historical data in the implementation. The department must establish a baseline which parallels the shoreline for each standard erosion zone and each inlet erosion zone.
(1) The baseline for each standard erosion zone is established at the location of the crest of the primary oceanfront sand dune in that zone. In standard erosion zones in which the shoreline has been altered naturally or artificially by the construction of erosion control devices, groins, or other manmade alterations, the baseline must be established by the department using the best scientific and historical data, as where the crest of the primary oceanfront sand dunes for that zone would be located if the shoreline had not been altered.
(2) The baseline for inlet erosion zones that are not stabilized by jetties, terminal groins, or other structures must be determined by the department as the most landward point of erosion at any time during the past forty years, unless the best available scientific and historical data of the inlet and adjacent beaches indicate that the shoreline is unlikely to return to its former position. In collecting and utilizing the best scientific and historical data available for the implementation of the retreat policy, the department, as part of the State Comprehensive Beach Management Plan provided for in this chapter, among other factors, must consider: historical inlet migration, inlet stability, channel and ebb tidal delta changes, the effects of sediment bypassing on shorelines adjacent to the inlets, and the effects of nearby beach restoration projects on inlet sediment budgets.
(3) The baseline within inlet erosion zones that are stabilized by jetties, terminal groins, or other structures must be determined in the same manner as provided for in item (1). However, the actual location of the crest of the primary oceanfront sand dunes of that erosion zone is the baseline of that zone, not the location if the inlet had remained unstabilized.
(4) Notwithstanding any other provision of this section, where a department-approved beach nourishment project has been completed, the local government or the landowners, with notice to the local government, may petition an Administrative Law Judge to move the baseline as far seaward as the landward edge of the erosion control structure or device or, if there is no existing erosion control structure or device, then as far seaward as the post project baseline as determined by the department in accordance with Section 48-39-280(A)(1) by showing that the beach has been stabilized by department-approved beach nourishment. If the petitioner is asking that the baseline be moved seaward pursuant to this section, he must show an ongoing commitment to renourishment which will stabilize and maintain the dry sand beach at all stages of the tide for the foreseeable future. If the Administrative Law Judge grants the petition to move the baseline seaward pursuant to this section, no new construction may occur in the area between the former baseline and the new baseline for three years after the initial beach nourishment project has been completed as determined by the department. If the beach nourishment fails to stabilize the beach after a reasonable period of time, the department must move the baseline landward to the primary oceanfront sand dune as determined pursuant to items (1), (2), and (3) for that section of the beach. Any appeal of an Administrative Law Judge's decision under this section may be made to the Coastal Zone Management Appellate Panel.
(B) To implement the retreat policy provided for in subsection (A), a setback line must be established landward of the baseline a distance which is forty times the average annual erosion rate or not less than twenty feet from the baseline for each erosion zone based upon the best historical and scientific data adopted by the department as a part of the State Comprehensive Beach Management Plan.
(C) The department, before July 3, 1991, must establish a final baseline and setback line for each erosion zone based on the best available scientific and historical data as provided in subsection (B) and with consideration of public input. The baseline and setback line must not be revised before July 1, 1998, nor later than July 1, 2000. After that revision, the baseline and setback line must be revised not less than every eight years but not more than every ten years after each preceding revision. In the establishment and revision of the baseline and setback line, the department must transmit and otherwise make readily available to the public all information upon which its decisions are based for the establishment of the final baseline and setback line. The department must hold one public hearing before establishing the final baseline and setback lines. Until the department establishes new baselines and setback lines, the existing baselines and setback lines must be used. The department may stagger the revision of the baselines and setback lines of the erosion zones so long as every zone is revised in accordance with the time guidelines established in this section.
(D) In order to locate the baseline and the setback line, the department must establish monumented and controlled survey points in each county fronting the Atlantic Ocean. The department must acquire sufficient surveyed topographical information on which to locate the baseline. Surveyed topographical data typically must be gathered at two thousand foot intervals. However, in areas subject to significant near-term development and in areas currently developed, the interval, at the discretion of the department, may be more frequent. The resulting surveys must locate the crest of the primary oceanfront sand dunes to be used as the baseline for computing the forty-year erosion rate. In cases where no primary oceanfront sand dunes exist, a study conducted by the department is required to determine where the upland location of the crest of the primary oceanfront sand dune would be located if the shoreline had not been altered. The department, by regulation, may exempt specifically described portions of the coastline from the survey requirements of this section when, in its judgment, the portions of coastline are not subject to erosion or are not likely to be developed by virtue of local, state, or federal programs in effect on the coastline which would preclude significant development, or both.
(E) A landowner claiming ownership of property affected who feels that the final or revised setback line, baseline, or erosion rate as adopted is in error, upon submittal of substantiating evidence, must be granted a review of the setback line, baseline, or erosion rate, or a review of all three. The requests must be forwarded to the Coastal Zone Management Appellate Panel and handled in accordance with the department's regulations on appeals.
Section 48-39-290. (A) No new construction or reconstruction is allowed seaward of the baseline except:
(1) wooden walkways no larger in width than six feet;
(2) small wooden decks no larger than one hundred forty-four square feet;
(3) fishing piers which are open to the public. Those fishing piers with their associated structures including, but not limited to, baitshops, restrooms, restaurants, and arcades which existed September 21, 1989, may be rebuilt if they are constructed to the same dimensions and utilized for the same purposes and remain open to the public. In addition, those fishing piers with their associated structures which existed on September 21, 1989, that were privately owned, privately maintained, and not open to the public on this date also may be rebuilt and used for the same purposes if they are constructed to the same dimensions;
(4) golf courses;
(5) normal landscaping;
(6) structures specifically permitted by special permit as provided in subsection (D);
(7) pools may be reconstructed if they are landward of an existing, functional erosion control structure or device. A permit must be obtained from the department for items (2) through (7).
(B) Construction, reconstruction, or alterations between the baseline and the setback line are governed as follows:
(1) Habitable structures:
(a) New habitable structures: If part of a new habitable structure is constructed seaward of the setback line, the owner must certify in writing to the department that the construction meets the following requirements:
(i) The habitable structure is no larger than five thousand square feet of heated space. The structure must be located as far landward on the property as practicable. A drawing must be submitted to the department showing a footprint of the structure on the property, a cross section of the structure, and the structure's relation to property lines and setback lines which may be in effect. No erosion control structure or device may be incorporated as an integral part of a habitable structure constructed pursuant to this section.
(ii) No part of the building is being constructed on the primary oceanfront sand dune or seaward of the baseline.
(b) Habitable structures which existed on the effective date of Act 634 of 1988 or constructed pursuant to this section:
(i) Normal maintenance and repair of habitable structures is allowed without notice to the department.
(ii) Additions to habitable structures are allowed if the additions together with the existing structure do not exceed five thousand square feet of heated space. Additions to habitable structures must comply with the conditions of new habitable structures as set forth in subitem (a).
(iii) Repair or renovation of habitable structures damaged, but not destroyed beyond repair, due to natural or manmade causes is allowed.
(iv) Replacement of habitable structures destroyed beyond repair due to natural causes is allowed after notification is provided by the owner to the department that all of the following requirements are met:
a. The total square footage of the replaced structure seaward of the setback line does not exceed the total square footage of the original structure seaward of the setback line. The linear footage of the replaced structure parallel to the coast does not exceed the original linear footage parallel to the coast.
b. The replaced structure is no farther seaward than the original structure.
c. Where possible, the replaced structure is moved landward of the setback line or, if not possible, then as far landward as is practicable, considering local zoning and parking regulations.
d. The reconstruction is not seaward of the baseline unless permitted elsewhere in Sections 48-39-250 through 48-39-360.
(v) Replacement of habitable structures destroyed beyond repair due to manmade causes is allowed provided the rebuilt structure is no larger than the original structure it replaces and is constructed as far landward as possible, but the new structure must not be farther seaward than the original structure.
(2) Erosion control devices:
(a) No new erosion control structures or devices are allowed seaward of the setback line except to protect a public highway which existed on the effective date of this act.
(b) Erosion control structures or devices which existed on the effective date of this act must not be repaired or replaced if destroyed:
(i) more than eighty percent above grade through June 30, 1995;
(ii) more than sixty-six and two-thirds percent above grade from July 1, 1995, through June 30, 2005;
(iii) more than fifty percent above grade after June 30, 2005.
(iv) Damage to seawalls and bulkheads must be judged on the percent of the structure remaining intact at the time of damage assessment. The portion of the structure or device above grade parallel to the shoreline must be evaluated. The length of the structure or device parallel to the shoreline still intact must be compared to the length of the structure or device parallel to the shoreline which has been destroyed.
The length of the structure or device parallel to the shoreline determined to be destroyed divided by the total length of the original structure or device parallel to the shoreline yields the percent destroyed. Those portions of the structure or device standing, cracked or broken piles, whalers, and panels must be assessed on an individual basis to ascertain if these components are repairable or if replacement is required. Revetments must be judged on the extent of displacement of stone, effort required to return these stones to the prestorm event configuration of the structure or device, and ability of the revetment to retain backfill material at the time of damage assessment. If the property owner disagrees with the assessment of a registered professional engineer acting on behalf of the department, he may obtain an assessment by a registered professional engineer to evaluate, as set forth in this item, the damage to the structure or device. If the two assessments differ, then the two engineers who performed the assessments must select a registered professional engineer to perform the third assessment. If the first two engineers are unable to select an engineer to perform the third assessment, the clerk of court of the county where the structure or device lies must make the selection of a registered professional engineer. The determination of percentage of damage by the third engineer is conclusive.
(v) The determination of the degree of destruction must be made on a lot by lot basis by reference to county tax maps.
(vi) Erosion control structures or devices must not be enlarged, strengthened, or rebuilt but may be maintained in their present condition if not destroyed more than the percentage allowed in Section 48-39-290(B)(2)(b)(i), (ii), and (iii). Repairs must be made with materials similar to those of the structure or device being repaired.
(c) Erosion control structures or devices determined to be destroyed more than the percentage allowed in Section 48-39-290(B)(2)(b)(i), (ii), and (iii) must be removed at the owner's expense. Nothing in this section requires the removal of an erosion control structure or a device protecting a public highway which existed on the effective date of Act 634 of 1988.
(d) The provisions of this section do not affect or modify the provisions of Section 48-39-120(C).
(3) Pools, as defined in Section 48-39-270(12):
(a) No new pools may be constructed seaward of the setback line unless the pool is built landward of an erosion control structure or device which was in existence or permitted on the effective date of this act and is built as far landward as practical.
(b) Normal maintenance and repair is allowed without notice to the department.
(c) If a pool, existing on July 1, 1988, is destroyed beyond repair, as determined by the department pursuant to Section 48-39-270(11), it may be replaced if the owner certifies in writing to the department that:
(i) It is moved as far landward as practical. This determination of practicality must include the consideration of local zoning requirements.
(ii) It is rebuilt no larger than the destroyed pool.
(iii) It is constructed according to acceptable standards of pool construction and cannot be reinforced in a manner so as to act as an erosion control structure or device.
(d) If a pool is not destroyed beyond repair as determined by the department pursuant to Section 48-39-270(11) but the owner wishes to replace it, the owner may do so if:
(i) The dimensions of the pool are not enlarged.
(ii) The construction conforms to sub-subitem (iii) of subitem (c).
(4) All other construction or alteration between the baseline and the setback line requires a department permit. However, the department, in its discretion, may issue general permits for construction or alterations where issuance of the general permits would advance the implementation and accomplishment of the goals and purposes of Sections 48-39-250 through 48-39-360.
(C) (1) Notwithstanding the provisions relating to new construction, a person, partnership, or corporation owning real property that is affected by the setback line as established in Section 48-39-280 may proceed with construction pursuant to a valid building permit issued as of the effective date of this section. The person, partnership, or corporation may proceed with the construction of buildings and other elements of a master plan, planned development, or planned unit development notwithstanding the setback line established in this chapter if the person, partnership, or corporation legally has begun a use as evidenced by at least one of the following:
(a) All building permits have been applied for or issued by a local government before July 1, 1988.
(b) There is a master plan, planned development, or planned unit development:
(i) that has been approved in writing by a local government before July 1, 1988; or
(ii) where work has begun pursuant to approval as evidenced by the completion of the utility and infrastructure installation designed to service the real property that is subject to the setback line and included in the approved master plan, planned development, or planned unit development.
(2) However, repairs performed on a habitable structure built pursuant to this section are subject to the guidelines for repairs as set forth in this section.
(3) Nothing in this section prohibits the construction of fishing piers or structures which enhance beach access seaward of the baseline, if permitted by the department.
(D) Special permits:
(1) If an applicant requests a permit to build or rebuild a structure other than an erosion control structure or device seaward of the baseline that is not allowed otherwise pursuant to Sections 48-39-250 through 48-39-360, the department may issue a special permit to the applicant authorizing the construction or reconstruction if the structure is not constructed or reconstructed on a primary oceanfront sand dune or on the active beach and, if the beach erodes to the extent the permitted structure becomes situated on the active beach, the permittee agrees to remove the structure from the active beach if the department orders the removal. However, the use of the property authorized under this provision, in the determination of the department, must not be detrimental to the public health, safety, or welfare.
(2) The department's Permitting Committee is the committee to consider applications for special permits.
(3) In granting a special permit, the committee may impose reasonable additional conditions and safeguards as, in its judgment, will fulfill the purposes of Sections 48-39-250 through 48-39-360.
(4) A party aggrieved by the committee's decision to grant or deny a special permit application may appeal to the full Coastal Zone Management Appellate Panel pursuant to Section 48-39-150(D).
(E) The provisions of this section and Section 48-39-280 do not apply to an area in which the erosion of the beaches located in its jurisdiction is attributed to a federally authorized navigation project as documented by the findings of a Section 111 Study conducted under the authority of the federal Rivers and Harbors Act of 1968, as amended by the federal Water Resources Development Act of 1986, and approved by the United States Army Corps of Engineers. Nothing contained in this subsection makes this area ineligible for beach renourishment funds. The baseline determined by the local governing body and the department is the line of erosion control devices and structures and the department retains its jurisdiction seaward of the baseline. In addition, upon completion of a department approved beach renourishment project, including the completion of a sand transfer system if necessary for long-term stabilization, an area under a Section 111 Study becomes subject to all the provisions of this chapter. For the purposes of this section, a beach nourishment project stabilizing the beach exists if a successful restoration project is completed consisting of at least one hundred fifty cubic yards a foot over a length of five and one-half miles, with a project design capable of withstanding a one-in-ten-year storm, as determined by department, and renourishment is conducted annually at a rate, agreed upon by the department and local governing body, equivalent to that which would occur naturally if the navigation project causing the erosion did not exist. If the two parties cannot agree, then the department must obtain the opinion of an independent third party. Any habitable structure located in an area in which the erosion of the beaches located in its jurisdiction is attributed to a federally authorized navigation project as documented by the findings of a Section 111 Study, which was in existence on September 21, 1989, and was over forty years old on that date and is designated by the local governing body as an historical landmark may be rebuilt seaward of the baseline if it is rebuilt to the exact specifications, dimensions, and exterior appearance of the structure as it existed on that date.
Section 48-39-300. A local governing body, if it notifies the department before July 1, 1990, may exempt from the provisions of Section 48-39-290, relating to reconstruction and removal of erosion control devices, the shorelines fronting the Atlantic Ocean under its jurisdiction where coastal erosion has been shown to be attributed to a federally authorized navigation project as documented by the findings of a Section 111 Study conducted under the authority of the Rivers and Harbors Act of 1968, as amended by the Water Resources Development Act of 1986 and approved by the United States Army Corps of Engineers. Erosion control devices exempt under this section must not be constructed seaward of their existing location, increased in dimension, or rebuilt out of materials different from that of the original structure.
Section 48-39-305. (A) A person having a recorded interest or interest by operation of law in or having registered claim to land seaward of the baseline or setback line which is affected by the prohibition of construction or reconstruction may petition the circuit court to determine whether the petitioner is the owner of the land or has an interest in it. If he is adjudged the owner of the land or to have an interest in it, the court shall determine whether the prohibition so restricts the use of the property as to deprive the owner of the practical uses of it and is an unreasonable exercise of police power and constitutes a taking without compensation. The burden of proof is on the petitioner as to ownership, and the burden of proof is on the State to prove that the prohibition is not an unreasonable exercise of police power.
(B) The method provided in this section for the determination of the issue of whether the prohibition constitutes a taking without compensation is the exclusive judicial determination of the issue, and it must not be determined in another judicial proceeding. The court shall enter a judgment in accordance with the issues. If the judgment is in favor of the petitioner, the order must require the State either to issue the necessary permits for construction or reconstruction of a structure, order that the prohibition does not apply to the property, or provide reasonable compensation for the loss of the use of the land or the payment of costs and reasonable attorney's fees, or both. Either party may appeal the court's decision.
Section 48-39-310. The destruction of beach or dune vegetation seaward of the setback line is prohibited unless there is no feasible alternative. When there is destruction of vegetation permitted seaward of the setback line, mitigation, in the form of planting of new vegetation where possible, for the destruction is required as part of the permit conditions.
Section 48-39-320. (A) The department's responsibilities include the creation of a long-range and comprehensive beach management plan for the Atlantic Ocean shoreline in South Carolina. The plan must include all of the following:
(1) development of the data base for the state's coastal areas to provide essential information necessary to make informed and scientifically based decisions concerning the maintenance or enhancement of the beach/dune system;
(2) development of guidelines and their coordination with appropriate agencies and local governments for the accomplishment of:
(a) beach/dune restoration and nourishment, including the projected impact on coastal erosion rates, cost/benefit of the project, impact on flora and fauna, and funding alternatives;
(b) development of a beach access program to preserve the existing public access and enhance public access to assure full enjoyment of the beach by all residents of this State;
(c) maintenance of a dry sand and ecologically stable beach;
(d) protection of all sand dunes seaward of the setback line;
(e) protection of endangered species, threatened species, and important habitats such as nesting grounds;
(f) regulation of vehicular traffic upon the beaches and the beach/dune system which includes the prohibition of vehicles upon public beaches for nonessential uses;
(g) development of a mitigation policy for construction allowed seaward of the setback line, which must include public access ways, nourishment, vegetation, and other appropriate means;
(3) formulation of recommendations for funding programs which may achieve the goals set forth in the State Comprehensive Beach Management Plan;
(4) development of a program on public education and awareness of the importance of the beach/dune system, the project to be coordinated with the South Carolina Educational Television Network and Department of Parks, Recreation and Tourism;
(5) assistance to local governments in developing the local comprehensive beach management plans.
(B) The plan provided for in this section is to be used for planning purposes only and must not be used by the department to exercise regulatory authority not otherwise granted in this chapter, unless the plan is created and adopted pursuant to Chapter 23 of Title 1.
Section 48-39-330. Thirty days after the initial adoption by the department of setback lines, a contract of sale or transfer of real property located in whole or in part seaward of the setback line or the jurisdictional line must contain a disclosure statement that the property is or may be affected by the setback line, baseline, and the seaward corners of all habitable structures referenced to the South Carolina State Plane Coordinate System (N.A.D.-1983) and include the local erosion rate most recently made available by the department for that particular standard zone or inlet zone as applicable. Language reasonably calculated to call attention to the existence of baselines, setback lines, jurisdiction lines, and the seaward corners of all habitable structures and the erosion rate complies with this section. The provisions of this section are regulatory in nature and do not affect the legality of an instrument violating the provisions.
Section 48-39-340. Funding for local governments to provide for beachfront management must be distributed in a fair and equitable manner. Consideration must be given to the size of the locality, the need for beach management in the area, the cost/benefits of expenditures in that area, and the best interest of the beach/dune system of the State as established by priority by the department.
Section 48-39-350. (A) The local governments must prepare by July 1, 1991, in coordination with the department, a local comprehensive beach management plan which must be submitted for approval to the department. The local comprehensive beach management plan, at a minimum, must contain all of the following:
(1) an inventory of beach profile data and historic erosion rate data provided by the department for each standard erosion zone and inlet erosion zone under the local jurisdiction;
(2) an inventory of public beach access and attendant parking along with a plan for enhancing public access and parking;
(3) an inventory of all structures located in the area seaward of the setback line;
(4) an inventory of turtle nesting and important habitats of the beach/dune system and a protection and restoration plan if necessary;
(5) a conventional zoning and land use plan consistent with the purposes of this chapter for the area seaward of the setback line;
(6) an analysis of beach erosion control alternatives, including renourishment for the beach under the local government's jurisdiction;
(7) a drainage plan for the area seaward of the setback zone;
(8) a post disaster plan including plans for cleanup, maintaining essential services, protecting public health, emergency building ordinances, and the establishment of priorities, all of which must be consistent with this chapter;
(9) a detailed strategy for achieving the goals of this chapter by the end of the forty-year retreat period. Consideration must be given to relocating buildings, removal of erosion control structures, and relocation of utilities;
(10) a detailed strategy for achieving the goals of preservation of existing public access and the enhancement of public access to assure full enjoyment of the beach by all residents of this State. The plan must be updated at least every five years in coordination with the department following its approval. The local governments and the department must implement the plan by July 1, 1992.
(B) Notwithstanding the provisions of Section 48-39-340, if a local government fails to act in a timely manner to establish and enforce a local coastal beach management plan, the department must impose and implement the plan or the State Comprehensive Beach Management Plan for the local government. If a local government fails to establish and enforce a local coastal beach management plan, the government automatically loses its eligibility to receive available state-generated or shared revenues designated for beach/dune system protection, preservation, restoration, or enhancement, except as directly applied by the department in its administrative capacities.
Section 48-39-355. A permit is not required for an activity specifically authorized in this chapter. However, the department may require documentation before the activity begins from a person wishing to undertake an authorized construction or reconstruction activity. The documentation must provide that the construction or reconstruction is in compliance with the terms of the exemptions or exceptions provided in Sections 48-39-280 through 48-39-360.
Section 48-39-360. The provisions of Sections 48-39-250 through 48-39-355 do not apply to an area which is at least one-half mile inland from the mouth of an inlet."
Oil and gas provisions revised
SECTION 1236. Chapter 43 of Title 48 of the 1976 Code is amended to read:
"Chapter 43
Oil and Gas Exploration, Drilling,
Transportation and Production
Article 1
General Provisions
Section 48-43-10. Unless the context otherwise requires, the terms defined in this section shall have the following meaning when used in this chapter:
(A) `Waste' means and includes:
(1) physical waste, as that term is generally understood in the oil and gas industry;
(2) the inefficient, excessive, or improper use, or the unnecessary dissipation of, reservoir energy;
(3) the inefficient storing of oil and gas;
(4) the locating, drilling, equipping, operating, or producing of any oil or gas well in a manner that causes, or tends to cause, reduction in the quantity of oil or gas ultimately recoverable from a pool under prudent and proper operations, or that causes or tends to cause unnecessary or excessive surface loss or destruction or oil or gas;
(5) the production of oil or gas in excess of
(a) transportation or marketing facilities;
(b) the amount reasonably required to be produced in the proper drilling, completing or testing of the well from which it is produced; or
(c) oil or gas otherwise usefully utilized but gas produced from an oil well or condensate well pending the time when, with reasonable diligence, the gas can be sold or otherwise usefully utilized on terms and conditions that are just and reasonable shall not be considered waste if the production of such gas has been approved by order of the department;
(6) underground or above ground waste in the production or storage of oil, gas, or condensate, however caused, and whether or not defined in other subdivisions hereof.
(B) `Department' means the South Carolina Department of Health and Environmental Control.
(C) `Person' means any natural person, corporation, association, partnership, receiver, trustee, executor, administrator, guardian, fiduciary, or other representatives of any kind, and includes any government or any political subdivision or any agency thereof.
(D) `Oil' means crude petroleum oil and all other hydrocarbons, regardless of gravity, that are produced in liquid form by ordinary production methods, but does not include liquid hydrocarbons that were originally in a gaseous phase in the reservoir.
(E) `Gas' means all natural gas and all other fluid hydrocarbons not hereinabove defined as oil, including condensate because it originally was in the gaseous phase in the reservoir.
(F) `Condensate' means liquid hydrocarbons that were originally in the gaseous phase in the reservoir.
(G) `Pool' means an underground reservoir containing a common accumulation of oil and gas or both; each zone of a structure that is completely separated from any other zone in the same structure is a pool.
(H) `Field' means the general area underlain by one or more pools.
(I) `Owner' means the person who has the right to drill into and produce from a pool and to appropriate the oil or gas that he produces therefrom, either for himself or for himself and others.
(J) `Producer' means the owner of a well or wells capable of producing oil or gas or both.
(K) `Just and Equitable Share of the Production' means, as to each person, that part of the authorized production from the pool that is substantially in the proportion that the amount of recoverable oil or gas or both in the developed areas of his tract or tracts in the pool bears to the recoverable oil or gas or both in the total of the developed areas in the pool.
(L) `Developed Area' means a spacing unit on which a well has been completed that is capable of producing oil or gas, or the acreage that is otherwise attributed to a well by the department for allowable purposes.
(M) `Protect Correlative Rights' means that the action or regulation by the department should afford a reasonable opportunity to each person entitled thereto to recover or receive the oil or gas in his tract or tracts or the equivalent thereto, without being required to drill unnecessary wells or to incur other unnecessary expense to recover or receive such oil or gas or its equivalent.
(N) `Product' means any commodity made from oil or gas, and includes refined crude oil, crude tops, topped crude, processed crude, processed crude petroleum, residue from crude petroleum, cracking stock, uncracked fuel oil, fuel oil, treated crude oil, residuum, gas oil, casinghead gasoline, natural gas gasoline, kerosene, benzine, wash oil, waste oil, blended gasoline, lubrication oil, blends or mixtures of oil with one or more liquid products or by-products derived from oil or gas, and blends or mixtures of two or more liquid products or by-products derived from oil or gas, whether herein enumerated or not.
(O) `Illegal Oil' means oil that has been produced from any well within the State in excess of the quantity permitted by any rule, regulation, or order of the department.
(P) `Illegal Gas' means gas that has been produced from any well within the State in excess of the quantity permitted by any rule, regulation, or order of the department.
(Q) `Illegal Product' means any product derived in whole or in part from illegal oil or illegal gas.
(R) `Certificate of Clearance' means a permit prescribed by the department for the transportation or the delivery of oil or gas or product.
(S) `Pollutant' means any emission that significantly derogates the quality of the air, water or land.
(T) `Pollution' means the act of emitting pollutants into the air or water or onto the land.
(U) `Royalty owner' means the person who pursuant to a lease arrangement with another has the right to receive, free of costs, an allocation of production or payments based upon the value of production.
(V) `Geothermal resources' mean the resources defined in Section 10-9-310 of the 1976 Code.
(W) `Sanitary landfill' means a solid waste disposal facility regulated by the Department of Health and Environmental Control.
(X) `Board' means board of the department.
Section 48-43-20. The waste of oil and gas and the pollution of the water, air or land is prohibited.
Section 48-43-30. (A) This chapter shall apply to all lands however owned, including the submerged lands, both inland and offshore, tidelands and wetlands located within the jurisdictional limits of the State and any lands owned or administered by any government or any agency or political subdivision thereof, over which the State, under its police power has jurisdiction; and to that end the department is authorized to:
(1) Prevent waste of oil and gas, to protect correlative rights and to prevent pollution of the water, air and land by oil or gas, and otherwise to administer and enforce this chapter. It has jurisdiction over all persons and property necessary for that purpose. In the event of a conflict, the duty to prevent waste is paramount.
(2) Make such investigations as it deems proper to determine whether action by the department in discharging its duties is necessary.
(3) Hire personnel to carry out the purposes of this chapter.
(B) Without limiting its general authority, the department shall have specific authority:
(1) To require:
(a) identification of ownership of oil or gas wells, producing leases, tanks, plants, structures, and facilities for the transportation or refining of oil and gas;
(b) the preparing and filing of well logs and samples, directional surveys and reports on well location, drilling and production, provided, however, that the log and samples of an exploratory or wildcat well need not be filed before one year after the completion of the well and upon the filing of the log and samples of such well the department shall keep the log and samples and information contained therein confidential for one year from the date of filing if requested by the operator in writing to do so and the department may keep the log and samples and information contained therein confidential for an additional year at its discretion if the operator requests in writing that the department keep such log and samples and information confidential for an additional year.
(c) the drilling, casing, operation, and plugging of wells in such manner as to prevent (a) the escape of oil or gas out of one pool into another, (b) the detrimental intrusion of water into an oil or gas pool that is avoidable by efficient operations, (c) the pollution of fresh water supplies by oil, gas, or salt water, and (d) blowouts, cavings, seepages, and fire;
(d) the taking of tests of oil or gas wells;
(e) the furnishing by all persons who apply for a drilling permit a reasonable performance bond with good and sufficient surety with the State of South Carolina as beneficiary to indemnify the State from loss or expense resulting from such person's failure to comply with the provisions of this chapter or the rules, regulations or orders of the department including the duty to plug each dry or abandoned well and to repair each well causing waste or pollution if repair will prevent waste or pollution; a performance bond may cover more than one drilling operation of the same person provided that the amount of such performance bond is increased to cover the additional well each time an application for a drilling permit is submitted to the department by that person.
(f) that the production from wells be separated into gaseous and liquid hydrocarbons, and that each be measured by means and upon standards that may be prescribed by the department;
(g) that wells not be operated with inefficient gas-oil or water-oil ratios, to fix these ratios, and to limit production from wells with inefficient gas-oil or water-oil ratios;
(h) certificates of clearance in connection with the transportation or delivery of oil, gas, or product;
(i) the metering or other measuring of oil, gas, or product;
(j) that every person who produces, sells, purchases, acquires, stores, transports, refines, or processes oil or gas in this State keep and maintain complete and accurate records of the quantities thereof, which records shall be available for examination by the department or its agents at all reasonable times;
(k) the filing of reports or plats with the department that it may prescribe;
(l) permits for the onshore and offshore exploration of oil and gas both on public and private lands whether highlands, wetlands or submerged land;
(m) the placing of meters approved by the department which shall at all times be under the supervision and control of the department wherever the department may designate on all pipelines, gathering systems, barge terminals, loading racks, refineries, or other places deemed necessary to prevent the transportation of illegally produced oil and gas;
(n) payment of reasonable fees for all publications, materials, charts, services and similar items furnished to persons at their request;
(o) that all persons who desire to drill wells for oil or gas obtain a permit from the department prior to the commencement of any drilling operations;
(p) that all pipelines placed in the Atlantic Ocean, its harbors, bays and other bodies of water which are a part of the Atlantic Ocean to transport oil, gas, condensate or product that cross the lands and under waters that are within the territorial jurisdiction of the State of South Carolina be located under the bottom of the Atlantic Ocean, its harbors, bays and other bodies of water which are a part of the Atlantic Ocean so that the pipelines will not interfere with navigation, fishing, shrimping, and other lawful recreational and commercial activities.
(2) To regulate:
(a) the drilling, testing, completing, stimulating, producing, reworking and plugging of wells, and all other operations associated with the production of oil and gas;
(b) the spacing or locating of wells;
(c) operations to increase ultimate recovery, such as cycling of gas, the maintenance of pressure, and the introduction of gas, water or other substances into a producing formation;
(d) the disposal of salt water and oil-field wastes;
(e) the exploration for oil or gas in the waters and on the lands that are within the jurisdictional limits of the State regardless of ownership;
(f) the transportation of oil and gas, as defined by this chapter and as distinguished by the definitions from product, from whatever source to gathering systems, refineries, and other storage and processing facilities which handle oil and gas;
(g) the commingling of oil and gas produced from wells having different owners or producers and to adopt such rules and regulations applicable to such commingling as may be necessary to protect the rights of the owners, producers and royalty owners of the wells from which the commingling oil or gas is produced.
(3) To limit the production of oil, gas, or condensate from any field, pool, area, lease, or well, and to allocate production.
(4) To classify and reclassify pools as oil, gas and condensate pools and to classify and reclassify wells as oil, gas or condensate wells.
(5) To promulgate, after hearing and notice as hereinafter provided, such rules and regulations, and issue such orders reasonably necessary to prevent waste and oil discharges from drilling and production platforms, pipelines, gathering systems, processing facilities, storage facilities, refineries, port facilities, tankers and other facilities and vessels that may be a source of oil spills and to protect correlative rights, to govern the practice and procedure before the board and to fulfill its duties and the purposes of this chapter.
(6) To regulate the exploration, drilling, production, and transportation of methane gas in and related to sanitary landfills. The department is authorized to exercise discretion in regulating such activities and may impose any requirement of this chapter as is necessary, in the opinion of the department, to prevent waste of oil and gas, to protect correlative rights and to prevent pollution of the water, air, and land by oil and gas. The department is further authorized to require any person applying for a drilling permit or otherwise producing methane gas in a sanitary landfill to comply with one of the following requirements for financial responsibility in an amount deemed sufficient by the department in its discretion in order to achieve the purpose specified in Section 48-43-30(A)(1):
(i) furnish a bond consistent with the requirements of Section 48-43-30(B)(1)(e); or
(ii) furnish proof of insurance with the State of South Carolina as beneficiary. Before the issuance of drilling permits for methane gas recovery from sanitary landfills, the department must certify that the proposed activity is consistent with the Department of Health and Environmental Control regulations governing the operation, monitoring, and maintenance of the landfills and applicable permit conditions.
Section 48-43-40. (A) No rule, regulation or order, or amendment thereof, except in an emergency, shall be made by the department without a public hearing upon at least twenty days' notice, exclusive of the date of service. No permit for the construction of a deep water port shall be granted by the department without a public hearing upon at least twenty days' notice, exclusive of the date of service. At least twenty days prior to the invitation for bids for the leasing of state lands for the purpose of oil and gas exploration and production, a public hearing shall be held. The public hearing shall be held at such time and place as may be prescribed by the department, and any interested person shall be entitled to be heard.
(B) When an emergency requiring immediate action is found to exist, the department may make an emergency order without notice of hearing, which shall be effective when made. No emergency order shall be effective for more than sixty days.
(C) Any notice required by this chapter shall be given by the department. Any such notice, at the election of the department, may be given by any one or more of the following methods: (a) personal service, (b) publication in one or more issues of a newspaper in general circulation in the state capital or of a newspaper of general circulation in the county where the land affected or some part thereof is situated, or (c) by United States mail addressed, postage prepaid, to the last known mailing address of the person or persons affected. The date of service shall be the date on which service was made in the case of personal service, the date of first publication in the case of notice by publication, and the date of mailing in the case of notice by mail. The notice shall be issued in the name of the State, shall be signed by the chairman, secretary or executive director of the department, shall specify the style and number of the proceedings, the time and place of the hearing, and shall briefly state the purpose of the proceeding. Should the department elect to give notice by personal service, such service may be made by an officer authorized to serve process, or by any agent of the department, in the same manner as is provided by law for the service of process in civil action in the courts of the State. Proof of the service by such agent shall be by the affidavit of the agent making personal service.
(D) All rules, regulations and orders made by the Department of Health and Environmental Control shall be in writing, shall be entered in full and indexed in books to be kept by the department for that purpose, and shall be public records open for inspection at all times during office hours. In addition, all rules and regulations shall be filed with the Secretary of State. A copy of any rule, regulation or order, certified by any member of the department or the department, under its seal, shall be received in evidence in all courts of this State with the same effect as the original.
(E) The department may act upon its own motion or upon the application of any interested person. On the filing of an application concerning any matter within the jurisdiction of the department that requires a hearing, the department shall promptly fix a date for a hearing thereon, and shall cause notice of the hearing to be given. The hearing shall be held without undue delay after the filing of the application. The department shall make its order within thirty days after the conclusion of the hearing.
Section 48-43-50. (A) The board or an Administrative Law Judge shall have the power to conduct hearings, to summon witnesses, to administer oaths and to require the production of records, books and documents for examination at any hearing or investigation.
(B) Upon failure or refusal on the part of any person to comply with a subpoena issued by the board pursuant to this section, or upon the refusal of any witness to testify as to any matter regarding which he may be interrogated and which is pertinent to the hearing or investigation, any circuit court in the State, upon the application of the board, may issue an order to compel such person to comply with such subpoena, and to attend before the board and produce such records, books and documents for examination, and to give his testimony. Such court shall have the power to punish for contempt as in the case of disobedience to a like subpoena issued by the court, or for refusal to testify therein.
Section 48-43-60. Any person, who is aggrieved and has a direct interest in the subject matter of any final order issued by the board, may appeal such order to the circuit court.
Section 48-43-80. Nothing in this chapter shall be deemed to apply to the storage or transportation of liquefied petroleum gas or to industrial effluents discharged into the waters or atmosphere of the state pursuant to either a federal or state permit.
Section 48-43-90. This chapter shall be liberally construed to effect the purposes set forth herein and the Federal Water Pollution Control Act, as amended.
Section 48-43-100. All rules and regulations adopted by the Department of Health and Environmental Control, as provided for in this chapter, must be approved by the General Assembly before they shall be effective; provided, however, no regulation approved by the General Assembly shall conflict, at the time of approval, with any requirement or be in excess of any statute, rule or regulation of the Federal Government or any department or agency thereof.
Article 2
Exploration and Production
Section 48-43-310. The department shall require that all persons who explore for oil or gas within the jurisdiction of the State of South Carolina obtain an exploration permit from the department. The department may include in the permits such conditions and restrictions as the department deems to be desirable or necessary and may charge a reasonable fee for the issuance of the permit.
All monies collected by the department pursuant to this section shall be forwarded to the State Treasurer who shall place such monies in an account for the department and such monies shall be used by the department in carrying out its duties imposed by this chapter.
Section 48-43-315. All provisions of this article regulating the leasing for, exploration for, drilling for, transportation of, and production of oil and gas and their products apply to geothermal resources to the extent possible. The provisions of this article do not apply to wells drilled for water supply only.
Section 48-43-320. (A) Whenever the department limits the amount of oil that may be produced in the State, the department shall allocate the allowable production among the pools on a reasonable basis.
(B) Whenever the department limits the total amount of oil, gas, or condensate that may be produced in any pool to an amount less than the amount that the pool could produce if no limitation were imposed, the department shall, subject to the reasonable necessities for the prevention of waste, allocate the allowable production among the several wells or producing properties in the pool so that each person entitled thereto will have a reasonable opportunity to produce or to receive a just and equitable share of the production.
(C) In allocating oil allowables to pools, the department may consider, but shall not be bound by, nominations of purchasers to purchase from particular pools or groups of pools. The department shall allocate the oil allowable from the State in such manner as will prevent undue discrimination among pools that would result from selective buying or nomination by purchasers.
Section 48-43-330. (A) The department may, upon application or on its own motion and after a hearing, establish spacing units for each pool.
(B) An order establishing spacing units shall specify the size and shape of the units, which shall be such as will, in the opinion of the department, result in the efficient and economical development of the pool as a whole. The size of the spacing units shall not be smaller than the maximum area that can be efficiently and economically drained by one well; provided, that if, at the time of a hearing to establish spacing units, there is not sufficient evidence from which to determine the area that can be efficiently and economically drained by one well, the department may make an order establishing temporary spacing units for the orderly development of the pool pending the obtaining of the information required to determine what the ultimate spacing should be.
(C) Except where circumstances reasonably require, spacing units shall be of approximately uniform size and shape for the entire pool. The department may establish spacing units of different sizes or shapes for different parts of a pool or may grant exceptions to the size or shape of any spacing unit or units or may change the size or shape of one or more existing spacing units. Where spacing units of different sizes or shapes exist in a pool, the department shall, if necessary, make such adjustment of the allowable production from the well or wells drilled thereon so that each person entitled thereto in each spacing unit will have a reasonable opportunity to produce or receive his just and equitable share of the production.
(D) An order establishing spacing units shall specify the location for the drilling of a well thereon, in accordance with a reasonably uniform spacing pattern, with necessary exceptions for wells drilled or drilling at the time of notice of the hearing to consider spacing. If the department finds that a well drilled at the prescribed location would not be likely to produce in paying quantities, or that surface conditions would substantially add to the burden or hazard of drilling such well, or for other good cause shown, the department is authorized to make an order permitting the well to be drilled at a location other than that prescribed by such spacing order. In so doing, the department shall, if necessary, make such an adjustment of the allowable production from the well drilled thereon so that each person entitled thereto in such spacing unit shall not produce or receive more than his just and equitable share of the production.
(E) An order establishing spacing units for a pool shall cover all lands determined or believed to be underlain by such pool, and may be modified by the department from time to time to include additional lands determined to be underlain by such pool or to exclude lands determined not to be underlain by such pool.
(F) An order establishing spacing units may be modified by the department to change the size and shape of one or more spacing units, or to permit the drilling of additional wells on a reasonably uniform pattern.
(G) After the date of the notice for a hearing called to establish spacing units, no additional well shall be commenced for production from the pool until the order establishing spacing units has been made, unless the commencement of the well is authorized by order of the department.
Section 48-43-340. (A) When two or more separately owned tracts are embraced within a spacing unit, or when there are separately owned interests in all or a part of a spacing unit, the interested persons may integrate their tracts or interests for the development and operation of the spacing unit. In the absence of voluntary integration, the department upon the application of any interested person, shall make an order integrating all tracts or interests in the spacing unit for the development and operation thereof and for the sharing of production therefrom. The department, as a part of the order establishing a spacing unit or units, may prescribe the terms and conditions upon which the interest of the royalty owners in the unit or units shall, in the absence of voluntary agreement, be deemed to be integrated without the necessity of a subsequent separate order integrating the interest of the royalty owners. Each such integration order shall be upon terms and conditions that are just and reasonable.
(B) All operations, including, but not limited to, the commencement, drilling, or operation of a well upon any portion of a spacing unit for which an integration order has been entered, shall be deemed for all purposes the conduct of such operations upon each separately owned tract or interest in the spacing unit by the several owners thereof. That portion of the production allocated to a separately owned tract or interest included in a spacing unit shall, when produced, be deemed, for all purposes, to have been actually produced from such tract or interest by a well drilled thereon.
(C) Each such integration order shall authorize the drilling, equipping, and operation, or operation, of a well on the spacing unit; shall provide who may drill and operate the well; shall prescribe the time and manner in which all the owners in the spacing unit may elect to participate therein; and shall make provision for the payment by all those who elect to participate therein of the reasonable actual cost thereof, plus a reasonable charge for supervision and interest. If requested, each such integration order shall provide for one or more just and equitable alternatives whereby an owner who does not elect to participate in the risk and cost of the drilling and operation, or operation, of a well may elect to surrender his leasehold interest to the participating owners on some reasonable basis and for a reasonable consideration which, if not agreed upon, shall be determined by the department, or may elect to participate in the drilling and operation, or operation, of the well, on a limited or carried basis upon terms and conditions determined by the department to be just and reasonable. If one or more of the owners shall drill, equip, and operate, or operate, or pay the costs of drilling, equipping, and operating, or operating, a well for the benefit of another person as provided for in an order of integration, then such owner or owners shall be entitled to the share of production from the spacing unit accruing to the interest of such other person, exclusive of a royalty not to exceed one-eighth of the production except in the event that the state is the royalty owner in which case the royalty shall not exceed one-sixth of production until the market value of such other person's share of the production, exclusive of such royalty, equals the sums payable by or charged to the interest of such other person. If there is a dispute as to the costs of drilling, equipping, or operating a well, the department shall determine such costs. In instances where a well is completed prior to the integration of interests in a spacing unit, the sharing of production shall be from the effective date of the integration, except that, in calculating costs, credit shall be given for the value of the owner's share of any prior production from the well.
Section 48-43-350. (A) The department upon its own motion may, and upon the application of any interested person shall, hold a hearing to consider the need for the operation as a unit of one or more pools or parts thereof in a field.
(B) The department shall make an order providing for the unit operation of a pool or part thereof if it finds that:
(1) such operation is reasonably necessary to increase the ultimate recovery of oil or gas; and
(2) the value of the estimated additional recovery of oil or gas exceeds the estimated additional cost incident to conducting such operations.
(C) The order shall be upon terms and conditions that are just and reasonable and shall prescribe a plan for unit operations that shall include:
(1) a description of the pool or pools or parts thereof to be so operated, termed the unit area;
(2) a statement of the nature of the operations contemplated;
(3) an allocation to the separately owned tracts in the unit area of all the oil and gas that is produced from the unit area and is saved, being the production that is not used in the conduct of operations on the unit area or not unavoidably lost. The allocation shall be in accord with the agreement, if any, of the interested parties. If there is not such agreement, the department shall determine the relative value, from evidence introduced at the hearing, of the separately owned tracts in the unit area, exclusive of physical equipment, for development of oil and gas by unit operations, and the production allocated to each tract shall be the proportion that the relative value of each tract so determined bears to the relative value of all tracts in the unit area;
(4) a provision for the credits and charges to be made in the adjustment among the owners in the unit area for their respective investments in wells, tanks, pumps, machinery, materials, and equipment contributed to the unit operations;
(5) a provision providing how the costs of unit operations, including capital investments, shall be determined and charged to the separately owned tracts and how such costs shall be paid, including a provision providing when, how, and by whom the unit production allocated to an owner who does not pay the share of the cost of unit operations charged to such owner, or the interests of such owner, may be sold and the proceeds applied to the payment of such costs;
(6) a provision, if necessary, for carrying or otherwise financing any person who elects to be carried or otherwise financed, allowing a reasonable interest charged for such service payable out of such person's share of the production;
(7) a provision for the supervision and conduct of the unit operations, in respect to which each person shall have a vote with a value corresponding to the percentage of the costs of unit operations chargeable against the interest of such person;
(8) the time when the unit operations shall commence, and the manner in which, and the circumstances under which, the unit operations shall terminate; and
(9) such additional provisions that are found to be appropriate for carrying on the unit operations, and for the protection of a correlative rights.
(D) No order of the department providing for unit operations shall become effective unless and until the plan for unit operations prescribed by the department has been approved in writing by those persons who, under the department's order, will be required to pay at least seventy-five percent of the costs of the unit operation, and also by the owners of at least seventy-five percent of the production or proceeds thereof that will be credited to interests which are free of cost, such as royalties, overriding royalties and production payments, and the department has made a finding, either in the order providing for unit operations or in a supplemental order, that the plan for unit operations has been so approved. For purposes of calculating the requisite percentages necessary to effectuate an order of the department when unleased acreage is effected by such order, the owner of the acreage shall be considered to be an owner and royalty owner in respective proportions of seven-eighths as owner and one-eighth as royalty owner except in a case when the acreage is owned by the State in which case the proportion shall be five-sixths as owner and one-sixth as royalty owner. If the plan for unit operations has not been so approved at the time the order providing for unit operations is made, the department shall upon application and notice hold such supplemental hearings as may be required to determine if and when the plan for unit operations has been so approved. If the persons owning required percentage of interest in the unit area do not approve the plan for unit operations within a period of six months from the date on which the order providing for unit operations is made, such order shall be ineffective, and shall be revoked by the department unless for good cause shown the department extends such time. (E) An order providing for unit operations may be amended by an order made by the department in the same manner and subject to the same conditions as an original order providing for unit operations, provided (a) if such an amendment affects only the rights and interests of the owners, the approval of the amendment by the royalty owners shall not be required, and (b) no such order of amendment shall change the percentage for the allocation of oil and gas as established for any separately owned tract by the original order, except with the consent of all persons owning oil and gas rights in such tract, or change the percentage for the allocation of cost as established for any separately owned tract by the original order, except with the consent of all owners in such tract.
(F) The department, by an order, may provide for the unit operation of a pool or pools or parts thereof that embrace a unit area established by a previous order of the department. Such order, in providing for the allocation of unit production, shall first treat the unit area previously established as a single tract, and the portion of the unit production so allocated thereto shall then be allocated among the separately owned tracts included in such previously established unit area in the same proportions as those specified in the previous order.
(G) An order may provide for unit operations on less than the whole of a pool where the unit area is of such size and shape as may be reasonably required for that purpose, and the conduct thereof will have no adverse effect upon other portions of the pool.
(H) All operations, including, but not limited to, the commencement, drilling or operation of a well upon any portion of the unit area shall be deemed for all purposes the conduct of such operations upon each separately owned tract in the unit area by the several owners thereof. The portion of the unit production allocated to a separately owned tract in a unit area shall, when produced, be deemed, for all purposes, to have been actually produced from such tract by a well drilled thereon. Operations conducted pursuant to an order of the department providing for unit operations shall constitute a fulfillment of all the express or implied obligations of each lease or contract covering lands in the unit area to the extent that compliance with such obligations cannot be had because of the order of the department.
(I) The portion of the unit production allocated to any tract, and the proceeds from the sale thereof, shall be the property and income of the several persons to whom, or to whose credit, the same are allocated or payable under the order providing for unit operations.
(J) No division order or other contract relating to the sale or purchase of production from a separately owned tract shall be terminated by the order providing for unit operations, but shall remain in force and apply to oil and gas allocated to such tract until terminated in accordance with the provisions thereof.
(K) Except to the extent that the parties affected so agree, no order providing for unit operations shall be construed to result in a transfer of all or any part of the title of any person to the oil and gas rights in any tract in the unit area. All property, whether real or personal, that may be acquired in the conduct of unit operations hereunder shall be acquired for the account of the owners within the unit area, and shall be the property of such owners in the proportion that the expenses of unit operations are charged.
Section 48-43-360. An agreement for the unit or cooperative development or operation of a field, pool or part thereof may be submitted to the department for approval as being in the public interest or reasonably necessary to prevent waste or protect correlative rights. Such approval shall constitute a complete defense to any suit charging violation of any statute of the State relating to trusts and monopolies on account thereof or on account of operations conducted pursuant thereto. The failure to submit such an agreement to the department for approval shall not for that reason imply or constitute evidence that the agreement or operations conducted pursuant thereto are in violation of laws relating to trusts and monopolies.
Section 48-43-370. (A) The department shall require that all persons who desire to drill oil or gas wells obtain a permit for each well proposed to be drilled prior to the commencement of any drilling operations. The drilling of any well is hereby prohibited until a permit is granted by the department.
(B) No permit to drill a gas or oil well shall be granted within the corporate limits of any municipality, unless the governing authority of the municipality shall have first duly approved the issuance of such permit by resolution.
(C) No permit to drill a gas or oil well on any beach shall be granted by the department.
Section 48-43-380. Whenever by reason of the termination of the full period within which an optional gas and oil lease which is of record may be kept alive by the payments of rentals, or at the termination of any of the options in such lease by reason of failure on the part of the lessee to comply with the condition therein for the prevention of forfeiture, such lease shall lapse, the lessee shall, on request in writing by the lessor, with an instrument, duly acknowledged, direct the cancellation of such lease on the records or shall supply the lessor with such instrument.
Any lessee failing or refusing to supply the lessor with such an instrument, or failing or refusing to cancel any lease on the records within thirty days after receiving written demand as above, shall be liable to such lessor for a reasonable attorney's fee incurred by the lessor in bringing suit to have such forfeiture and cancellation adjudged, and in addition thereto shall be liable to the lessor for all damages suffered by the lessor by reason of his inability to make any lease on account of the first lease not having been canceled.
This section shall be construed to apply to all leases for oil or gas heretofore entered into.
Section 48-43-390. (A) The South Carolina State Budget and Control Board, hereinafter referred to as the board, is hereby designated as the State Agency with the authority, responsibility and power to lease all State lands to persons for the purpose of drilling for and producing oil and gas. The Department of Health and Environmental Control is hereby designated as the exclusive agent for the board in selecting lands to be leased, administering the competitive bidding for leases, administering the leases, receiving and compiling comments from other state agencies concerning the desirability of leasing the state lands proposed for leasing and such other activities that pertain to oil and gas leases as may be included herein as responsibilities of the board.
(B) Upon resolution adopted by a majority of the board, the board may lease any of those lands heretofore enumerated if the board finds that the lease of the lands would not be detrimental to the State and its citizens and if the department recommends that a lease of the lands be granted. The Governor as chairman of the board shall execute all oil and gas leases. The leases shall be filed in the county in which the land is situated as all other instruments conveying real estate are filed except leases of offshore lands shall be filed in the offices of the department as a public record. The department shall have the responsibility of administering all such leases for the board.
(C) Any lease executed pursuant to this section shall be for a term of no more than five years unless substantial drilling operations have been commenced on the property in which case the lease shall be extended from year to year so long as substantial drilling operations continue unless the well drilled upon the leased property becomes a producing well, in which case the lease shall be extended from year to year for as long as production continues or the leased property has a known capacity to produce oil or gas and the production has been discontinued with the prior approval of the department under such terms as the department has prescribed. The leases granted pursuant to this section shall include no more than two thousand five hundred acres (1,000 hectares) but a person is not prohibited from holding a leasehold interest in more than two thousand five hundred acres (1,000 hectares) under two or more leases. The leases shall be granted under such terms and conditions as the board shall deem to be in the best interest of the citizens of the State. However, no lease shall provide for a lesser royalty than one-sixth of the oil and gas produced from the leased property or one-sixth of the monetary value of such oil and gas at the wellhead.
(D) No property shall be leased except by sealed bid. The property shall be leased to the bidder submitting the bid which provides for the highest bonus payment. The bonus payment shall be in addition to any rental payments established by the department in the lease agreement and royalties provided for herein.
Any person desiring that a certain tract or tracts of property be submitted for bidding shall nominate such tract or tracts by so informing the department in accordance with the procedure for nominating established by the department.
If the department determines that the tract nominated as provided herein or upon its own motion determines that a tract should be submitted for bidding, it shall invite all interested persons to submit bids for leasing the designated tract. Invitations for bids shall be published in a newspaper of general circulation within the county or counties where the tract proposed to be leased is located and in a newspaper of statewide circulation, at least twenty-five days before the final date for submitting bids. Invitations for bids shall also be mailed twenty-five days before the final date of submitting bids to the last known address of all persons who have filed a statement in accordance with the procedure established by the department indicating a desire to bid upon tracts put up for leasing. The invitation to bids shall contain:
(1) a description, location and approximate acreage of the tract to be leased;
(2) the address to which the bids are to be submitted;
(3) the time and place at which the bids will be opened;
(4) the date and time by which the bids must be received;
(5) any special provisions of the lease or special rules and regulations promulgated by the department for the tract to be leased and
(6) any other matters that the department may deem pertinent.
The bids shall be opened publicly at the time and date prescribed by the department in the offices of the department by the person designated by the department to open bids. The department shall furnish to persons who request a copy of the lease agreement for the tract submitted for bidding. The lease of any tract shall be granted to the highest responsible bidder but the department and the board may reject all bids when it determines that the public interest will be served thereby. The department and the board must accept the most advantageous offer or reject all bids within twenty days from the date the bids were opened.
(E) All monies collected by the department and the board as bonuses, rental payments or royalties shall be deposited with the State Treasurer in a special account and expended as the General Assembly may direct.
(F) Prior to the mailing and publication of invitations to bid, the department shall advise the appropriate State agencies by notice of the tract proposed to be submitted for bidding. The agencies wishing to comment on the desirability of leasing such tract shall do so within thirty days following receipt of the notice.
The department shall consider the comments of the agencies in determining the advisability of leasing the tract. If the department determines to lease the tract on which it has received unfavorable comment from the agencies, the department and board shall require such special provisions in the lease agreement and promulgate such rules and regulations for each individual tract that is leased as may be necessary to safeguard against particular hazards or detrimental effects that may result from drilling oil or gas wells and the production of oil or gas on the tract.
In considering the special provisions, rules and regulations needed for a specific tract, the department and board shall specifically include such provisions, rules and regulations shown by the commenting agency to be necessary (1) for the protection of the environment, (2) to minimize the detriment to aesthetics, (3) for the protection of the property rights of other persons and the public, (4) to avoid obstructing navigable streams, (5) to prevent interference with recreation, (6) to protect the public beaches, and (7) to maintain the quality of underground water.
The construction of drilling platforms in the Atlantic Ocean is permitted except that such drilling platforms shall not be located within one mile (1.6 kilometers) of the mean high water mark of any beach within the territorial jurisdiction of the State of South Carolina.
(G) The department is authorized to promulgate such rules and regulations as may be necessary to fulfill its duties set forth in this section and implement the provisions and purposes of this section.
(H) (a) Any person as defined herein who intends to construct a deep water port facility within the territorial jurisdiction of the State of South Carolina for the purpose of loading or unloading oil, gas or other products as defined by this chapter shall apply for and obtain a permit to construct such facility from the department prior to the commencement of construction.
(b) The department shall promulgate such rules and regulations to govern the construction of deep water port facilities as may be necessary (1) for the protection of the environment, (2) to minimize the detriment to aesthetics, (3) for the protection of the property rights of other persons and the public, (4) for the protection of the rights of the fishing industry, (5) for the protection of the recreational activities of the public, (6) to avoid obstructing shipping channels, (7) to protect the public beaches, and (8) in general, to protect the public interest and rights of the state and its industries. In promulgating such rules and regulations, the department shall take into consideration the comments of other state agencies concerning the potential hazards present in constructing deep water port facilities and shall follow the procedure set forth in Section 48-39-390(F) in soliciting and receiving the comments from such state agencies.
Article 3
Pollution Control
Section 48-43-510. When used in this article unless the context clearly requires otherwise:
(1) `Department' means the Department of Health and Environmental Control.
(2) `Director' means the director of the department.
(3) `Barrel' means 42 U. S. gallons at 60° Fahrenheit.
(4) `Other measurements' means measurements set by the department for products transferred at terminals which are other than fluid or which are not commonly measured by the barrel.
(5) `Discharge' shall include, but not be limited to, any spilling, leaking, seeping, pouring, emitting, emptying, or dumping which occurs within the territorial limits of the State or outside of the territorial limits of the State and affects lands and waters within the territorial limits of the State.
(6) `Pollutants' shall include oil of any kind and in any form, gasoline, pesticides, ammonia, chlorine, and derivatives thereof.
(7) `Pollution' means the presence in the outdoor atmosphere or waters of the States of any one or more substances or pollutants, in quantities which are or may be potentially harmful or injurious to human health or welfare, animal or plant life, or property or which may unreasonably interfere with the enjoyment of life or property, including outdoor recreation.
(8) `Terminal facility' means any waterfront or offshore facility of any kind, other than vessels not owned or operated by such facility, and directly associated waterfront or offshore appurtenances including pipelines located on land, including submerged lands, or on or under the surface of any kind of water, which facility and related appurtenances are used or capable of being used for the purpose of drilling for, pumping, storing, handling, transferring, processing, or refining pollutants, including, but not limited to, any such facility and related appurtenances owned or operated by a public utility or a governmental or quasi-governmental body. A vessel shall be considered a terminal facility only in the event of a ship-to-ship transfer of pollutants, and only that vessel going to or coming from the place of transfer and the terminal facility. For the purposes of this article `terminal facility' shall not be construed to include waterfront facilities owned and operated by governmental entities acting as agents of public convenience for operators engaged in the drilling for or pumping, storing, handling, transferring, processing, or refining of, pollutants; however, each operator engaged in the drilling for or pumping, storing, handling, transferring, processing, or refining of pollutants through a waterfront facility owned and operated by such governmental entity shall be construed as a terminal facility.
(9) `Owner means any person owning a terminal facility; `operator' means any person operating a terminal facility, whether by lease, contract, or other form of agreement.
(10) `Transfer' or `transferred' includes onloading or offloading between terminal facility and vessel, vessel and vessel, or terminal facility and terminal facility.
(11) `Vessel' includes every description of watercraft or other contrivance used, or capable of being used, as a means of transportation on water, whether self-propelled or otherwise, and includes barges and tugs.
(12) `Discharge cleanup organization' means any group, incorporated or unincorporated, of owners or operators of waterfront terminal facilities in any port or harbor of the State, and any other person who may elect to join, organized for the purpose of containing and cleaning up discharges of pollutants through cooperative efforts and shared equipment and facilities.
(13) `Board' means the Department of Health and Environmental Control.
(14) `Person' means any individual, partnership, joint venture, corporation; any group of the foregoing, organized or united for a business purpose; or any governmental entity.
(15) `Registrant' is a terminal facility required to possess a valid registration certificate to operate as a terminal facility.
Section 48-43-520. (1) The General Assembly finds and declares that the highest and best use of the seacoast of the State is as a source of public and private recreation.
(2) The General Assembly further finds and declares that the preservation of this use is a matter of the highest urgency and priority, and that such use can only be served effectively by maintaining the coastal waters, estuaries, tidal flats, beaches, and public lands adjoining the seacoast in as close to a pristine condition as possible, taking into account multiple use accommodations necessary to provide the broadest possible promotion of public and private interests.
(3) Furthermore it finds and declares that:
(a) The transfer of pollutants between vessels, between onshore facilities and vessels, between offshore facilities and vessels, and between terminal facilities within the jurisdiction of the State and state waters is a hazardous undertaking;
(b) Spills, discharges, and escapes of pollutants occurring as a result of procedures involved in the transfer, storage, and transportation of such products pose threats of great danger and damage to the environment of the State, to owners and users of shore front property, to public and private recreation, to citizens of the State and other interests deriving livelihood from marine-related activities, and to the beauty of the coast;
(c) Such hazards have frequently occurred in the past, are occurring now, and present future threats of potentially catastrophic proportions, all of which are expressly declared to be inimical to the paramount interests of the State as herein set forth; and
(d) Such state interests outweigh any economic burdens imposed upon those engaged in transferring pollutants and related activities.
(4) The General Assembly intends by the enactment of this article to exercise the police power of the State by conferring upon the Department of Health and Environmental Control power to:
(a) Deal with the hazards and threats of danger and damage posed by such transfers and related activities;
(b) Require the prompt containment and removal of pollution occasioned thereby; and
(5) The General Assembly further finds and declares that the preservation of the public uses referred to herein is of grave public interest and concern to the State in promoting its general welfare, preventing diseases, promoting health, and providing for the public safety and that the state's interest in such preservation outweighs any burdens of liability imposed herein upon those engaged in transferring pollutants and related activities.
(6) The General Assembly further declares that it is the intent of this article to support and complement applicable provisions of the Federal Water Pollution Control Act, as amended, specifically those provisions relating to the national contingency plan for removal of pollutants.
Section 48-43-530. (1) The powers and duties conferred by this article shall be exercised by the Department and shall be deemed to be an essential governmental function in the exercise of the police power of the State. The Department may call upon any other state agency for consultative services and technical advice and the agencies are directed to cooperate with the Department.
(2) Registration certificates required under this article shall be issued by the Department subject to such terms and conditions as are set forth in this article and as set forth in rules and regulations promulgated by the Department as authorized herein.
(3) Whenever it becomes necessary for the State to protect the public interests under this article it shall be the duty of the Department to keep an accurate record of costs and expenses incurred and thereafter diligently to pursue the recovery of any sums so incurred from the person responsible or from the Government of the United States under any applicable federal act.
(4) The Department may bring an action on behalf of the State to enforce the liabilities imposed by this article. The Attorney General shall represent the Department in any such proceeding.
Section 48-43-540. (1) No person shall operate or cause to be operated a terminal facility as defined in Section 48-43-510 (8) without a registration certificate.
(2) Registration certificates shall be issued on a five-year basis and shall expire on December thirty-first of the fifth year, such certificates shall be subject to such terms and conditions as the Department may determine are necessary to carry out the purposes of this article.
(3) As a condition precedent to the issuance or renewal of a registration certificate, the Department shall require satisfactory evidence that the applicant has implemented, or is in the process of implementing, state and federal plans and regulations for prevention, control and abatement of pollution when a discharge occurs.
(4) Registration certificates issued to any terminal facility shall include vessels used to transport pollutants between the facility and vessels within state waters.
(5) The Department shall require, in connection with the issuance of a terminal facility registration certificate, the payment of a reasonable fee for processing applications for registration certificates.
The fee shall be reasonably related to the administrative costs of verifying data submitted pursuant to obtaining the certificates and reasonable inspections; however, the fee shall not exceed two hundred fifty dollars per terminal facility per year.
(6) No later than January 1, 1978 every owner or operator of a terminal facility shall obtain a registration certificate. The department shall issue a registration certificate upon the showing that the registrant can provide all required equipment to prevent, contain, and remove discharges of pollutants or is a member of a Discharge Cleanup Organization.
(7) On or after a date to be determined by the Department, but in no case later than January 1, 1978 no person shall operate or cause to be operated any terminal facility without a terminal facility registration certificate issued by the Department. Registration certificates shall be valid for five years; provided however, they shall be subject to annual inspection.
Each applicant for a terminal facility registration certificate shall pay the registration certificate application fee and shall submit information, in a form satisfactory to the Department, describing the following:
(a) The barrel or other measurement capacity of the terminal facility.
(b) All prevention, containment, and removal equipment, including, but not limited to, vehicles, vessels, pumps, skimmers, booms, chemicals, and communication devices to which the facility has access, whether through direct ownership or by contract or membership in an approved discharge cleanup organization.
(c) The terms of agreement and operation plan of any discharge cleanup organization to which the owner or operator of the terminal facility belongs.
(8) Upon showing of satisfactory containment and cleanup capability under this section, and upon payment of the registration certificate application fee, the applicant shall be issued a registration certificate covering the terminal facility and related appurtenances, including vessels as defined in Section 48-43-510(11).
Section 48-43-550. The Department shall from time to time adopt, amend, repeal, and enforce reasonable regulations relating to the cleanup and removal of discharges of pollutants into the waters or onto the coasts of this State.
Such regulations shall include, but not be limited to:
(a) Operation and inspection requirements for terminal facilities, vessels, and other matters relating to certification under this article but shall not require vessels to maintain spill prevention gear, holding tanks of any kind, and containment gear in excess of federal requirements.
(b) Procedures and methods of reporting discharges and other occurrences prohibited by this article.
(c) Procedures, methods, means, and equipment to be used by persons subject to regulation by this article on the removal of pollutants.
(d) Development and implementation of criteria and plans to meet pollution occurrences of various degrees and kinds.
(e) Creation by contract or administrative action of a state response team which shall be responsible for creating and maintaining a contingency plan of response, organization, and equipment for handling emergency cleanup operations. The state plans shall include detailed emergency operating procedures for the State as a whole and the team shall from time to time conduct practice alerts. These plans shall be filed with the Governor and all Coast Guard stations in the State and Coast Guard captains of the port having responsibility for enforcement of federal pollution laws within the State, on or before January 1, 1978. The contingency plan shall include all necessary information for the total containment and cleanup of pollution, including but not limited to an inventory of equipment and its location, a table of organization with the names, addresses, and telephone numbers of all persons responsible for implementing every phase of the plan, a list of available sources of supplies necessary for cleanup, and a designation of priority zones to determine the sequence and methods of cleanup. The state response team shall act independently of agencies of the federal government but is directed to cooperate with any federal cleanup operation.
(f) Requirements that, prior to being granted entry into any port in this State, the master of a vessel shall report:
(1) Any discharges of pollutants the vessel has had since leaving the last port;
(2) Any mechanical problem on the vessel which creates the possibility of a discharge;
(3) Any denial of entry into any port during the current cruise of the vessel. Any person who shall make or cause to be made any false statement in response to requirements of any provisions of this article with a fraudulent intent shall be deemed guilty of a felony and upon conviction shall be imprisoned for two years or fined five thousand dollars, or both.
(g) Requirements that any registrant causing or permitting the discharge of a pollutant in violation of the provisions of this article and at other reasonable times, be subject to a complete and thorough inspection. If the Department determines there are unsatisfactory preventive measures or containment and cleanup capabilities, it shall, a reasonable time after notice and hearing, suspend the registration until such time as there is compliance with the Department requirements.
(h) Such other rules and regulations as the exigencies of any condition may requirement or as may reasonably be necessary to carry out the intent of this article.
Section 48-43-560. (1) Any person discharging pollutants in violation of this article shall immediately undertake to contain remove, and abate the discharge to the Department's satisfaction. Notwithstanding the above requirement, the Department may undertake the removal of the discharge and may contract and retain agents who shall operate under the direction of the Department.
(2) If the person causing a discharge, or the person in charge of facilities at which a discharge has taken place, fails to act, the Department may arrange for the removal of the pollutant, except that if the pollutant was discharged into or upon the navigable waters of the United States, the Department shall act in accordance with the national contingency plan for removal of such pollutant as established pursuant to the Federal Water Pollution Control Act, as amended, and the costs of removal incurred by the Department shall be paid in accordance with the applicable provisions of the law. Federal funds provided under this act shall be used to the maximum extent possible prior to the expenditure of state funds.
(3) In the event of discharge the source of which is unknown, any local discharge cleanup organization shall, upon the request of the Department or its designee, immediately contain and remove the discharge. No action taken by any person to contain or remove a discharge, whether such action is taken voluntarily or at the request of the Department or its designee, shall be construed as an admission of liability for the discharge.
(4) No person who, voluntarily or at the request of the Department or its designee, renders assistance in containing or removing pollutants shall be liable for any civil damages to third parties resulting solely from acts or omissions or such person in rendering such assistance, except for acts or omissions amounting to gross negligence or willful misconduct.
(5) Nothing in this article shall affect in any way the right of any person who renders assistance in containing or removing pollutants to reimbursement for the costs of the containment or removal under the applicable provisions of this article or the Federal Water Pollution Control Act, as amended, or any rights which that person may have against any third party whose acts or omissions in any way have caused or contributed to the discharge of the pollutants.
Section 48-43-570. (a) The Department of Transportation, the Department of Natural Resources, and any other agency of this State, shall cooperate with and lend assistance to the Department of Health and Environmental Control by assigning, upon request, personnel, equipment and material to be utilized in any project or activity related to the containment, collection, dispersal or removal of oil discharged upon the land or into the waters of this State.
(b) Subsequent to July 1, 1977, and prior to September 1, 1977, designated representatives of the department, the Department of Transportation, and the Department of Natural Resources , and any other agency or agencies of the State which the department shall deem necessary and appropriate, shall confer and establish plans and procedures for the assignment and utilization of personnel, equipment and material to be used in carrying out the purposes of this article.
(c) Every state agency participating in the containment, collection, dispersal or removal of an oil discharge or in restoration necessitated by such discharge, shall keep a record of all expenses incurred in carrying out any such project or activity including the actual services performed by the agency's personnel and the use of the agency's equipment and material. A copy of all records shall be delivered to the department upon completion of the project or activity.
Section 48-43-580. It shall be unlawful, except as otherwise provided in this article, for any person to discharge or cause to be discharged, pollutants into or upon any waters, tidal flats, beaches or lands within this State or into any sewer, surface water drain or other waters that drain into the waters of this State, regardless of the fault of the person having control over the pollutants or regardless of whether the discharge was the result of intentional or negligent conduct, accident or other cause.
This section shall not apply to discharges of pollutants in the following circumstances:
(1) When the discharge was authorized by an existing regulation of the Department.
(2) When any person subject to liability under this article proves that a discharge was caused by any of the following:
(a) An act of God.
(b) An Act of war or sabotage.
(c) Negligence on the part of the United States government or the State or its political subdivisions.
(d) An act or omission of a third party, whether any such act or omission was or was not negligent; provided, however, nothing herein shall be construed as limiting the liability of such third party.
(e) Any act or omission by or at the direction of a law enforcement officer or fireman.
Any person who desires or proposes to discharge oil into the land or into the waters of the State shall first make application for and secure a permit from the Department. Application shall be made under such terms and conditions adopted by the Department. Any permit granted pursuant to this section may contain such terms and conditions as the Department shall deem necessary and appropriate to conserve and protect the land or waters of this State and the public interest therein.
Section 48-43-590. All persons operating or owning terminal facilities, within the territorial jurisdiction of the State shall furnish, under such conditions as may be prescribed from time to time by the Department, evidence of financial responsibility of fourteen million dollars to meet any and all liabilities to all persons caused by the operations of any such terminal facilities. Evidence of financial responsibility may be established by an insurance or surety bond issued by an insurance or bonding company authorized to do business in the State, qualifications of a self-insurer or other evidence of financial responsibility acceptable to the Department. This provision shall not be construed as limiting the liability of any person operating or owning terminal facilities.
Section 48-43-600. Any person claiming to have suffered damage as a result of an unlawful discharge under Section 48-43-580 may file a claim pursuant to the Administrative Procedures Act.
Section 48-43-610. (1) It is unlawful for any person to violate any provision of this article or any rule, regulation of the department, or order of the department made pursuant to this article. Except as otherwise provided, a violation shall be punishable by a civil penalty of up to ten thousand dollars per violation per day to be assessed by the department. Each day during any portion of which the violation occurs constitutes a separate offense.
(2) Penalties assessed herein for a discharge shall be the only penalties assessed by the State, and the assessed person or persons, shall be excused from paying any other penalty for water pollution for the same occurrence.
(3) The penalty provisions of this section shall not apply to any discharge promptly reported and removed by a registrant or vessel in accordance with the rules, regulations and orders of the Department.
Article 4
Violations and Penalties
Section 48-43-620. The department shall submit to each regular session of the legislature a proposed budget for carrying out its responsibilities under this article and shall also account for all funds appropriated by the legislature for carrying out its responsibilities under this article for the previous year.
Section 48-43-810. It shall be unlawful for any person to:
(a) willfully violate any provision of this chapter, or any rule, regulation or order of the department;
(b) commence operations for the drilling of a well for oil or gas without first obtaining a permit from the department, under such rules and regulations as may be prescribed by the department;
(c) do any of the following for the purpose of evading or violating this chapter, or any rule, regulation or order of the department; make any false entry or statement in a report required by this chapter or by any rule, regulation of the department or order of the department; make or cause to be made any false entry in any record, account or memorandum, required by this chapter, or by any such rule, regulation or order; omit, or cause to be omitted, from any such record, account or memorandum full, true and correct entries as required by this chapter, or by any such rule, regulation or order; or remove from this State or destroy, mutilate, alter or falsify any such record, account or memorandum;
(d) refuse to attach or install a meter as prescribed by the department pursuant to Section 48-43-30B(1)(m) herein when ordered to do so by the department or in any way to tamper with such meter so as to produce a false or inaccurate reading, or to have any bypass at such a place where the oil or gas can be passed around;
(e) permit through negligence or willfulness any gas or oil well to go wild or to get out of control.
Any person violating the provisions of this section shall be deemed guilty of a misdemeanor and, upon conviction, shall be fined not more than one thousand dollars or be imprisoned for not more than six months, or both.
Section 48-43-820. (A) Any person who violates any provision of this chapter, or any rule, regulation or order of the department, shall also be subject to a civil penalty of not more than five thousand dollars for each act of violation and for each day that such violation continues.
(B) Any person who negligently or willfully permits an oil or gas well to go wild or to get out of control, to cause pollution or waste, or to create other conditions that are detrimental to the property rights of others or the public shall be liable to the department for the expense incurred in correcting the detrimental conditions and the civil penalties imposed by Section 48-43-820A and the department is hereby authorized to take whatever action it deems necessary, including operation of the well, to correct the detrimental conditions and charge the owner or producer, or both, of the well for the expenses incurred.
(C) The penalties and liabilities provided in this section shall be recoverable by civil suit filed by the Attorney General in the name and on behalf of the department in the court of common pleas of the county in which the defendant resides or in which any defendant resides, if there be more than one defendant, or in the court of common pleas of any county in which the violation occurred. The payment of any such penalty shall not operate to legalize any illegal oil, illegal gas or illegal product involved in the violation for which the penalty is imposed or relieve a person on whom the penalty is imposed from liability to any other person for damages arising out of such violation.
(D) In addition to any civil and criminal penalties imposed by this chapter, any person who violates any provisions of this chapter, or rules, regulations and orders of the department, shall be liable to all third parties who may incur damage or injury because of such violations.
Section 48-43-830. Any person knowingly aiding or abetting any other person in the violation of any provision of this chapter, or any rule, regulation of the department or order of the department, shall be subject to the same punishment and penalty prescribed by this chapter for the violation by such other person.
Section 48-43-840. (A) The sale, purchase, acquisition, transportation, refining, processing or handling of illegal oil, illegal gas or illegal product is hereby prohibited. However, no penalty by way of fine shall be imposed upon a person who sells, purchases, acquires, transports, refines, processes or handles illegal oil, illegal gas or illegal product unless (1) such person knows, or is put on notice of, facts indicating that illegal oil, illegal gas or illegal product is involved, or (2) such person fails to obtain a certificate of clearance with respect to such oil, gas or product if prescribed by an order of the department, or fails to follow any other method prescribed by an order of the department for the identification of such oil, gas or product.
(B) Illegal oil, illegal gas, and illegal product are declared to be contraband and are subject to seizure and sale as herein provided. Seizure and sale shall be in addition to any and all other remedies and penalties provided in this chapter for violations relating to illegal oil, illegal gas, or illegal product. Whenever the department believes that any oil, gas, or product is illegal, the department, acting by the Attorney General, shall bring a civil action in rem in the court of common pleas of the county where such oil, gas, or product is found, to seize and sell the same, or the department may include such an action in rem in any suit brought for an injunction or penalty involving illegal oil, illegal gas, or illegal product. Any person claiming an interest in oil, gas, or product affected by such action in rem shall have the right to intervene as an interested party in such action.
(C) Actions for seizure and sale of illegal oil, illegal gas or illegal product shall be strictly in rem, and shall proceed in the name of the state as plaintiff against the oil, gas or product as defendant. No bond or similar undertaking shall be required of the plaintiff. The action for seizure and sale shall be commenced in the court of common pleas for the county in which the oil, gas or product is situated by a summons and complaint which shall be verified or supported by affidavits. When the verified complaint or complaint and supporting affidavits set forth sufficient facts to support the seizure and sale of the illegal oil, illegal gas or illegal products, the clerk of court of the county in which such oil, gas or product is situated or the judge of the judicial circuit which has jurisdiction to hear matters arising in the county shall issue a warrant directed to the sheriff of the county for service upon any and all persons having or claiming any interest in the oil, gas or product described in the complaint. The warrant shall direct the sheriff to take such oil, gas or product into his custody until such time as the court has heard the action on its merits and the matter has been fully adjudicated. The original summons and complaint and warrant shall be filed with the clerk of court for the county by the plaintiff with the sheriff's affidavit of service attached when service has been accomplished in the manner set forth herein by the sheriff. All persons having or claiming any interest in the oil, gas or product described in the complaint must appear and answer the complaint within twenty days after the service of such summons and complaint. Service of the summons and complaint and warrant by posting copies on the door of the courthouse for the county in which the oil, gas or product described in the complaint is situated, by posting copies in the immediate vicinity of the place where such oil, gas or product is located and by publishing the summons and complaint and warrant in any newspaper of general circulation in the county in which such oil, gas or product is located in four consecutive issues of the newspaper shall constitute valid and sufficient service on all persons having or claiming any interest in the such oil, gas or product.
Any person who fails to appear and answer the complaint within twenty days after service of the summons and complaint and warrant shall be forever barred by any judgment obtained by the plaintiff. The service of the summons and complaint and warrant as provided herein shall place the State in constructive or actual possession, as the case may be, of the oil, gas or product.
(D) Any person having an interest in any oil, gas or product which has been seized in accordance with the provisions of Section C may, prior to the sale thereof, obtain the release thereof, upon furnishing bond to the sheriff, approved by the clerk of court, in an amount equal to one hundred and fifty percent of the market value of the oil, gas or product to be released pending a final adjudication of the action on its merits.
(E) If the court, after a hearing upon the complaint for the seizure and sale of oil, gas, or product, finds that such oil, gas, or product is contraband, the court shall order the sale thereof by the sheriff in the same manner and upon the same notice of sale as provided by law for the sale of personal property on execution of judgment entered in a civil action, except that the court may order that the oil, gas, or product be sold in specified lots or portions and at specified intervals. Upon such sale, title to the oil, gas, or product sold shall vest in the purchaser free of the claims of any and all persons having any title thereto or interest therein at or prior to the seizure thereof, and the same shall be legal oil, legal gas, or legal products, as the case may be, in the hands of the purchaser.
(F) All proceeds derived from the sale of illegal oil, illegal gas, or illegal product, as above provided, after payment of costs of suit and expenses incident to the sale and all amounts paid as penalties provided for by this chapter, shall be paid into the State Treasury for the use of the department in defraying its expenses in the same manner as other funds provided by law for the use of the department.
Section 48-43-850. Whenever it appears that any person is violating or threatening to violate any provision of this chapter, or any rule, regulation of the department or order of the department, the Attorney General may, at the request of the department, bring suit in the name of the department against such persons in the court of common pleas of the county where the violation occurs or is threatened, or in the county in which the defendant resides or in which any defendant resides if there is more than one defendant, to restrain such person from continuing such violation or from carrying out the threat of violation. In any such suit, the court shall have jurisdiction to grant without bond or other undertaking, such prohibitory or mandatory injunctions as the facts may warrant, including temporary restraining orders and preliminary injunctions."
Reference revised
SECTION 1237. Section 48-45-40 of the 1976 Code is amended to read:
"Section 48-45-40. The membership of the consortium consists of The Citadel, the College of Charleston, Clemson University, the Medical University of South Carolina, South Carolina State College, the University of South Carolina, and the Department of Natural Resources. These members are designated as charter members.
The terms of the members are perpetual, and a majority of the charter members may vote the admission of a new member into the consortium."
Reference revised
SECTION 1238. Section 48-45-80 of the 1976 Code is amended to read:
"Section 48-45-80. There is hereby created an advisory committee to the Consortium Director to consist of seven members who shall serve for terms of four years and until their successors are appointed and qualified. Four members must be appointed by the Governor with the advice and consent of the Senate. The chairmen of the Senate Fish, Game and Forestry Committee, House Agriculture and Natural Resources Committee, and Department of Natural Resources Board shall each appoint one member upon the recommendation of a majority of the members of their respective committees and commission. The four members appointed by the Governor must be residents of coastal counties, no more than one from each county, and two must be associated with the commercial fishing industry."
References revised
SECTION 1239. Section 48-47-175(B) of the 1976 Code is amended to read:
"(B) The owner or operator of a low level radioactive waste disposal facility shall, no later than 30 days following the end of each quarter, submit the following to the South Carolina Department of Revenue and Taxation:
1. A report detailing the quantity and type of waste disposed of during the previous calendar quarter; and
2. A check made payable to the South Carolina Department of Revenue and Taxation for the amount of tax imposed in (A) above."
References revised
SECTION 1240. Section 48-55-10 of the 1976 Code is amended to read:
"Section 48-55-10. (A) The South Carolina Environmental Awareness Award must be presented annually by a committee of two members appointed from each of the following:
(1) South Carolina Department of Health and Environmental Control by its commissioner;
(2) State Commission of Forestry by its chairman;
(3) South Carolina Sea Grant Consortium by its executive director;
(4) Water Resources Division of the Department of Natural Resources by the department's director;
(5) Wildlife and Freshwater Fish Division of the Department of Natural Resources by the department's director;
(6) Land Resources and Conservation Districts Division of the Department of Natural Resources by the department's director; and
(7) Coastal Division of the Department of Health and Environmental Control by the department's director;
(8) Marine Resources Division of the Department of Natural Resources by the department's director.
(B) The committee shall elect from its members a chairman and a secretary. Each department or commission shall provide for the expenses of its members, except collective expenses must be shared by the departments and the commissions. Members are not eligible for mileage or per diem."
References and regulatory provisions revised
SECTION 1241. Section 49-1-15 of the 1976 Code is amended to read:
"Section 49-1-15. (A) Except as otherwise provided herein, no person may erect, construct, or build any structure or works in order to dam or impound the waters of a navigable stream or any waters which are tributary to a navigable stream for the purpose of generating hydroelectricity without securing a permit from the Department of Health and Environmental Control. Any projects that are subject to Chapter 33 of Title 58 of the Utility Facility Siting and Environmental Protection Act are exempted from this section. Further exempted are projects where the project developer without exercising condemnation authority is the existing owner of the property upon which the project is to be constructed and projects which do not exceed sixty acres including in both cases inundated land.
(B) The Department of Health and Environmental Control may issue a permit for the projects in this subsection after a thorough review of the proposed project and a finding that it meets any regulations of the board and the following standards:
(1) The proposed project does not halt or prevent navigation by watercraft of the type ordinarily frequenting the reach of the watercourse in question.
(2) The projects proposed for shoaled areas of the watercourse provide a means of portage or bypass of the project structure.
(3) The need for the proposed project far outweighs the historical and current uses of the stream in question.
(4) The impact of the proposed project will not threaten or endanger plant or animal life.
(5) The recreational and aesthetic benefits or detriments caused by the proposed project do not alter the watercourse or damage riparian lands.
(C) The Attorney General shall represent before any federal agency the department, if so requested by the department, respecting the same application."
Department may charge fee
SECTION 1242. Chapter 1 of Title 49 of the 1976 Code is amended by adding:
"Section 49-1-16. The Department of Health and Environmental Control may charge a fee to an applicant for a permit for any construction, alteration, dredging, filling, or other activity in navigable waters of the State. If the project is commercial or industrial and is in support of operations that charge for the production, distribution, or sale of goods or services, a fee of five hundred dollars must be charged, except if the aerial crossing of navigable waters by conductors or other wires supported solely by structures outside the navigable waters the fee shall be one hundred dollars. If the work is noncommercial in nature and provides personal benefits that have no connection with a commercial enterprise the fee must be fifty dollars. The department shall remit the fees to the State Treasurer and shall be issued a credit for any portion of the fees necessary to offset its costs in processing, investigating and taking final action on each permit application. Any remaining portion shall be credited to the general fund of the State."
Reference revised
SECTION 1243. Section 49-3-20 of the 1976 Code is amended to read:
"Section 49-3-20. (a) There is hereby created the South Carolina Water Resources Commission, hereinafter referred to as the commission, which shall be composed of eighteen members as follows: Ten shall be appointed by the Governor and eight shall serve as ex officio members. The ten members appointed by the Governor shall be composed of three members representing the interest of agriculture, three members representing the interest of industry, three members representing the interest of municipalities, and one member representing saltwater interests. The terms of the members appointed by the Governor shall be for three years, except that for those first appointed, representing the interest of agriculture, industry and municipalities, one of these from each category shall be appointed for one year, one from each category shall be appointed for two years, and one from each category shall be appointed for three years. The member representing saltwater interests shall be appointed for three years. The length of the terms of the three members from the categories of agriculture, industry and municipalities shall be determined by lot at the first meeting of the Commission after appointment. The heads of the following eight departments of the State government shall constitute the eight ex officio members of the Commission. Provided, however, that the head of each department concerned may at his discretion designate another member of his department to serve on the Commission in his stead. The length of the terms of the members serving ex officio shall be coterminous with the terms for which the head of each department concerned is elected or appointed.
(1) The Department of Agriculture;
(2) The South Carolina Department of Health and Environmental Control;
(3) The South Carolina Wildlife and Marine Resources Commission;
(4) The South Carolina State Forestry Commission;
(5) The State Land Resources Conservation Commission;
(6) The Director of the Department of Commerce;
(7) The Clemson University Water Resources Research Institute; and
(8) The State Highway Department.
(b) A meeting of the Commission shall be called by the Governor within thirty days after appointment and thereafter the Commission shall meet upon a call of the chairman or a majority of the members appointed by the Governor. At the first meeting the Commission shall organize itself by electing as chairman one of the members appointed by the Governor and such other officers as may be considered necessary. The term of office of the chairman shall be for one year and he may succeed himself. A majority of those members appointed by the Governor shall constitute a quorum for the purpose of conducting the business of the Commission.
(c) Members of the Commission shall receive no salary for the performance of their duties but shall be entitled to such per diem, subsistence and mileage as authorized by law for members of boards, commissions or committees, which shall be paid on vouchers signed by the chairman from the Civil Contingent Fund of the State for the members of the commission appointed by the Governor, and from the appropriation of each department of the state government concerned for the members serving ex officio."
Water Resources Commission transferred
SECTION 1244. Chapter 3 of Title 49 of the 1976 Code is amended to read:
"CHAPTER 3
Water Resources Planning
and Coordinating Act
Section 49-3-10. This chapter may be cited as the South Carolina Water Resources Planning and Coordination Act.
Section 49-3-20. As used in this chapter:
(1) `Board' means the governing body of the Department of Natural Resources.
(2) `Department' means the Department of Natural Resources.
Section 49-3-30. The former Water Resources Commission without its regulatory functions is hereby transferred to the Water Resources Division of the Department of Natural Resources and is directly accountable to and subject to the board of the Department of Natural Resources. The Water Resources Division shall be directly accountable to and subject to the Department of Natural Resources. The regulatory functions of the former Water Resources Commission are transferred to the Department of Health and Environmental Control.
Section 49-3-40. (a) The department shall advise and assist the Governor and the General Assembly in:
(1) formulating and establishing a comprehensive water resources policy for the State, including coordination of policies and activities among the state departments and agencies;
(2) developing and establishing policies and proposals designed to meet and resolve special problems of water resource use and control within or affecting the State, including consideration of the requirements and problems of urban and rural areas;
(3) reviewing the actions and policies of state agencies with water resource responsibilities to determine the consistency of such actions and policies with the comprehensive water policy of the State and to recommend appropriate action where deemed necessary;
(4) reviewing any project, plan or program of federal aid affecting the use or control of any waters within the State and to recommend appropriate action where deemed necessary;
(5) developing policies and recommendations to assure that the long range interests of all groups, urban, suburban, and rural, are provided for in the state's representation on interstate water agencies;
(6) recommending to the General Assembly any changes of law required to implement the policy declared in this chapter; and
(7) such other water resources planning, policy formulation and coordinating functions as the Governor and the General Assembly may designate.
(b) The department is authorized to conduct or arrange for such studies, inquiries, surveys or analyses as may be relevant to its duties in assisting the Governor and the General Assembly in the implementation of the policy declared in this chapter, and in developing recommendations for the General Assembly. For these purposes, the department shall have full access to the relevant records of other state departments and agencies and political subdivisions of the State, and may hold public hearings, and may cooperate with or contract with any public or private agency, including educational, civic and research organizations. The studies, inquiries, surveys, or analyses shall incorporate and integrate, to the maximum extent feasible, plans, programs, reports, research and studies of federal, state, interstate, regional, metropolitan and local units, agencies and departments of government.
(c) In developing recommendations for the Governor and the General Assembly relating to the use and control of the water resources of the State, the department shall:
(1) coordinate its activities by distribution of copies of its notices of meetings with agenda, minutes and reports of all state agencies concerned with water resources;
(2) consult with representatives of any federal, state, interstate, or local units of government which would be affected by such recommendations; and
(3) be authorized to appoint such interdepartmental and public advisory boards as necessary to advise them in developing policies for recommendations to the Governor and the General Assembly.
(d) The department shall encourage, assist and advise regional, metropolitan, and local governmental agencies, officials or bodies responsible for planning in relation to water aspects of their programs, and shall assist in coordinating local water resources activities, programs, and plans.
(e) The department may publish reports, including the results of such studies, inquiries, surveys and analyses as may be of general interest, and shall make an annual report of its activities to the Governor and the General Assembly within ten days after the convening of each session of the General Assembly.
(f) The department may receive and expend grants, gifts, and monies donated or given by any state or private agency, person, corporation, water or sewer authority, or political subdivision in connection with water resource investigations in which the results of such investigations will be made publicly available.
(g) The department is authorized and required to review and approve the expenditure of funds derived from the United States Army Corps of Engineers when any funds are authorized and appropriated for any water resources related projects or purposes, including but not limited to, the following:
(1) navigation,
(2) irrigation,
(3) water storage,
(4) aquatic weed management,
(5) flood control,
(6) salinity control,
(7) interstate water concerns, and
(8) any studies, surveys, or analyses performed by the Corps of Engineers.
The review and approval required by this subsection is not applicable to any Corps of Engineers funds which must be expended in a different manner pursuant to express statutory direction.
Section 49-3-50. In exercising its responsibilities under this chapter, the department shall take into consideration the need for:
(a) Adequate supplies of surface and groundwaters of suitable quality for domestic, municipal, agricultural, and industrial uses.
(b) Water quality facilities and controls to assure water of suitable quality for all purposes.
(c) Water navigation facilities.
(d) Hydroelectric power.
(e) Flood damage control or prevention measures including zoning to protect people, property, and productive lands from flood losses.
(f) Land stabilization measures.
(g) Drainage measures, including salinity control.
(h) Watershed protection and management measures.
(i) Outdoor recreational and fish and wildlife opportunities.
(j) Any other means by which development of water and related land resources can contribute to economic growth and development, the long-term preservation of water resources, and the general well-being of all the people of the State."
Water use provisions revised
SECTION 1245. Chapter 4 of Title 49 of the 1976 Code is amended to read:
"CHAPTER 4
South Carolina Water Use Reporting
and Coordination Act
Section 49-4-10. This chapter shall be known and cited as the South Carolina Water Use Reporting and Coordination Act.
Section 49-4-15. As used in this chapter:
(1) `Board' means the board of the department.
(2) `Department' means the Department of Health and Environmental Control.
Section 49-4-20. The department may promulgate regulations to require any person, business, firm, corporation, governmental agency or political subdivision using, withdrawing, diverting, obtaining or drilling for any surface, underground or other water within the State for any purpose to report any of the following water use information:
(a) Identification and location of any sites or facilities where such water is used, withdrawn, diverted, obtained and discharged.
(b) Identification and location of any sites or facilities where a water well is drilled.
(c) The source and location of the water.
(d) The capacity and location of any intake, withdrawal or diversion pumps or structures.
(e) The number and depth of any wells or underground sources from which water is withdrawn or to which it is returned and the capacity of any withdrawal pumps or structures.
(f) Any water treatments applied to such waters.
(g) The total amount of water so used, diverted, withdrawn or obtained in accordance with Section 49-4-30, including the maximum daily use within each month.
(h) Water storage and treatment capacity.
(i) For each discharge or return of water (1) the total amount of such discharge or return in accordance with Section 49-4-30 and the maximum daily discharge or return for each month, (2) the location of the discharge or return structure and the name and location of the receiving stream, river, well, land area, utility or other source to which the water is returned or discharged.
(j) The method used to determine the amount of water used, withdrawn or obtained. The department shall not require the installation of flow measuring devices to determine such amounts and where such devices are not available a reasonable estimate of the amount used, based on estimating procedures satisfactory to it, shall be sufficient for the purposes of reporting any water use information requested under this chapter.
(k) The general nature of the use made of the water. Such information shall be required by general category of use only and no requests for information shall be made which require compilation of extensive data not capable of reasonable estimation based on estimating procedures satisfactory to the department or which would be likely to reveal a trade secret or process or other confidential information as provided in Section 49-4-80.
Section 49-4-30. Information required to be reported pursuant to Section 49-4-20 shall be submitted to the department quarterly. Reports of water use exclusively for agricultural purposes shall be submitted to the department annually in accordance with Section 49-4-40. During and only during periods of extremely low stream flow the department may require monthly reports in lieu of quarterly reports and quarterly reports in lieu of annual reports. The department shall by regulation establish a procedure for requiring such emergency monthly and quarterly reports only from those water users in the affected low stream flow areas.
Section 49-4-40. The department shall establish by regulation a reporting system for agricultural uses in cooperation with Clemson University. Clemson University may participate with the department in collecting and compiling agricultural water use information in accordance with this chapter and the regulations promulgated by it.
Section 49-4-50. Reporting shall be required of any water user diverting, withdrawing or obtaining one hundred thousand gallons or more of water per day on any day.
Section 49-4-60. Any person, business, firm, corporation, governmental agency or political subdivision that drills, bores, digs, deepens, alters or changes any well, except wells intended for single family domestic purposes, four inches or greater in diameter for the purpose of using, withdrawing, diverting or obtaining water within the State shall submit to the department a driller's well log. The department may promulgate regulations specifying the information to be reported on forms prepared by it, including but not limited to the following:
(a) The character and depth of the formation passed through or encountered.
(b) The static water level of the completed well.
(c) A copy of the record of pumping tests, if any.
(d) The construction details, including lengths, diameters and thickness of casing, screening and gravel packing.
(e) The type of pumping equipment installed, if any.
Such logs shall be submitted to the department within thirty days after the completion of drilling, boring, digging, deepening, altering or changing such well.
Section 49-4-70. To the extent possible, the department shall utilize existing reporting forms and procedures and shall endeavor to reduce the number of separate reports required. Any person, business, firm, corporation, governmental agency or political subdivision reporting information, that is required by this chapter, to the department shall not be required to make additional reports to the department. The department may require additional attachments requesting information to forms employed by any state agency but only if such additional information does not increase the number of reports required and, in such cases, similar information shall not be required on any other reporting form under this chapter. Any form used for the reporting of information authorized by this chapter shall be drawn so that the responding party can readily determine the specific authority under which each question is asked.
Section 49-4-80. Upon a claim by the user that the disclosure of particular water use information, other than the total amount used, diverted, withdrawn or obtained would reveal a trade secret, process or other confidential information or would impair national security, the department shall hold such water use information confidential. Compilations of water use information not identifiable to the user may be published by the department. In any case in which the total amount of water used, diverted, withdrawn or obtained is claimed to be confidential, the department may require the user to establish that disclosure of such information would reveal a trade secret, process or other confidential information or impair national security.
Section 49-4-90. Prior to effecting any change in any regulations promulgated pursuant to the authority granted in this chapter, the department shall notify, via regular mail, water users to be affected by such change. This provision shall apply only to water users that are required by this chapter to submit a water use report to the department at the time a change in regulations is proposed by the department."
Groundwater use provisions revised
SECTION 1246. Chapter 5 of Title 49 of the 1976 Code is amended to read:
CHAPTER 5
Groundwater Use Act
Section 49-5-10. This chapter is known and may be cited as the Groundwater Use Act.
Section 49-5-20. The General Assembly declares that the general welfare and public interest require that the water resources of the State be put to beneficial use to the fullest extent to which they are capable, subject to reasonable regulation in order to conserve and protect these resources, prevent waste, and to provide and maintain conditions which are conducive to the development and use of water resources.
Section 49-5-30. Unless the context otherwise requires, the following terms as used in this chapter are defined as follows:
(1) `Area of the State' means any municipality or county or portion of a county or municipality or other substantial geographical area of the State as may be designated by the department.
(2) `Department' means the South Carolina Department of Health and Environmental Control.
(3) `Person' means individuals, firms, partnerships, associations, public or private institutions, municipalities or political subdivisions, governmental agencies, or private or public corporations organized under the laws of this State or any other state or county.
(4) `Groundwater' means water of underground streams, channels, artesian basins, reservoirs, lakes, and other water under the surface of the earth whether percolating or otherwise, natural or artificial, which is contained within, flows through, or borders upon this State or any portion of this State, including those portions of the Atlantic Ocean over which this State has jurisdiction.
(5) `Aquifer' means a geologic formation, group of these formations, or a part of such a formation that is water bearing.
(6) `Domestic use' means a well appurtenant to a single family dwelling intended for household purposes, gardens, or livestock, except that this use is restricted to gardens and livestock for the personal use or consumption of the landowner or lessee operating the well but does not include gardens and livestock maintained for commercial purposes.
(7) `Well' means any excavation that is cored, bored, drilled, jetted, dug, or otherwise constructed for the purpose of locating, testing, or withdrawing groundwater or for evaluating, testing, developing, draining, or recharging any groundwater reservoirs or aquifer, or that may control, divert, or otherwise cause the movement of water from or into any aquifer. This does not include surface water impoundments that normally receive inflow from or discharge into a surface watercourse.
(8) `Flowing well' means a well releasing groundwater under such pressure that pumping is not necessary to bring it above the ground surface.
Section 49-5-40. (A) The department, upon receipt of a request of a county, municipality, or other political subdivision of this State, may declare and delineate, and may modify, capacity use areas of the State where it finds that the use of groundwater requires coordination and regulation for protection of the interests and rights of residents or property owners of these areas or of the public interest.
(B) Within the meaning of this chapter `a capacity use area' is one where the department finds that the aggregate uses of groundwater in or affecting the area have developed or threatened to develop to a degree which requires coordination and regulation, or exceed or threaten to exceed or otherwise threaten or impair, the renewal or replenishment of the waters or any part of them. In making its findings, the department shall consider, but is not limited to, determining whether there may be reason to believe that:
(1) groundwater levels (elevations relative to mean sea level of water table or artesian water head) in the area in question are declining or have declined excessively;
(2) the wells of two or more groundwater users within the area in question interfere substantially with one another;
(3) the available groundwater supply in the area in question is being or is about to be overdrawn;
(4) the flow of any surface watercourse is being affected by groundwater use; or
(5) groundwater level declines have resulted in or may result in compaction of aquifers with subsequent reduction in aquifer productivity or subsidence of land surface;
(6) groundwater level declines or fluctuations have resulted in or may result in the formation of sinkholes and dolines;
(7) groundwater withdrawals have resulted in or may result in the capture and diversion of natural or man-made contaminants; or
(8) other reasons exist, as determined by the department, that substantially may threaten, limit, or impair the ability to use groundwater for the benefit of the general welfare and public interest.
(C) The department may declare and delineate capacity use areas in accordance with the following procedures:
(1) Whenever the department, after reviewing a request from a county, municipality, or subdivision of this State, believes that a capacity use situation exists or may be emerging in any area of the State, it may direct its agent to conduct an investigation and report to the department on this situation.
(2) In conducting the investigation the agent shall consult with all interested persons, groups, and agencies, may retain consultants, and shall consider all factors relevant to the conservation and use of water in the area. The report must include the agent's findings and recommendations as to the water use problems of the area involving groundwater, whether effective measures can be employed limited to groundwater, and whether timely action by any agency or person may preclude the need for additional regulation at that time. The report must also include those other findings and recommendations as may be considered appropriate, including recommended boundaries for any capacity use area that may be proposed.
(3) If the department finds, following its review of the report (or following its evaluation of measures taken falling short of regulation) that a capacity use area should be declared, it may adopt an order declaring the capacity use area. Before adopting the order, the department shall give notice of its proposed action and conduct one or more public hearings with respect to the proposed action.
(4) The notice must be given not less than thirty days before the date of the hearing and state the date, time, and place of hearing, the subject of the hearing, and the action which the department proposes to take. The notice must either include details of the proposed action, or where the proposed action is too lengthy for publication, the notice must specify that a copy of the proposed action may be obtained on request from the department.
(5) The notice must be published at least once in one newspaper of general circulation circulated in each county of the State in which the water area affected is located.
(6) Any person who desires to be heard at the public hearing shall give notice of this desire in writing to the department on or before the first date set for the hearing. The department is authorized to set reasonable time limits for the oral presentation of views by any one person at the public hearing. The department shall permit anyone who so desires to file a written argument or other statement with the department in relation to any proposed action of the department any time within thirty days following the conclusion of any public hearing or within that additional time as the department may allow by notice given as prescribed in this section.
(7) Upon completion of public hearings and consideration of relevant comments with respect to any proposed action by the department pursuant to this section, the department shall adopt its final action with respect to this matter and publish a notice of its action in the State Register. The department is empowered to modify or revoke any final action previously taken by it pursuant to the provisions of this section, the modification, or revocation, however, is subject to the procedural requirements of this chapter, including notice and hearing. If the department finds and orders that a capacity use area must be declared, its order must include a delineation of the boundary of the area, and the department shall instruct its agent to prepare proposed regulations consistent with the provisions of this chapter and commensurate with the degree of control needed from among the classes of permissible regulations set forth in Section 49-5-50.
Section 49-5-50. (A) Following the declaration of a capacity use area by the department, it shall prepare proposed regulations to be applied in the area, containing such of the following provisions as the department finds appropriate concerning the use of groundwaters:
(1) Provisions requiring water users within the area to submit reports not more frequently than at thirty-day intervals concerning quantity and quality of water used or withdrawn, sources of water, water levels, and the nature and distribution of the use of the water. The department shall not require reports of public supply well water quality where the reports are duplicative and are derived from samples collected at times and by methods suitable for the purposes of the department .
(2) With respect to groundwaters provisions concerning the timing of withdrawals; provisions to protect against or abate saltwater encroachment; provisions to protect against or abate unreasonable adverse effects on other water users within the area, including, but not limited to, adverse effects on public use; and provisions to minimize waste by requiring users to employ water conservation measures.
(3) With respect to groundwaters provisions concerning well depth and spacing controls; and provisions establishing a range of prescribed pumping levels (elevations below which water may not be pumped) or maximum pumping rates, or both, in wells or for the aquifer or for any part of the wells or aquifer based on the capacities and characteristics of the aquifer.
(4) With respect to groundwaters provisions concerning withdrawals to protect against or abate sinkholes and land subsidence resulting from or relating to these withdrawals.
(5) With respect to wells provisions concerning minimum well design standards; provisions requiring approval by the department of well design plans before construction and the issuance of any permit under this chapter; provisions regarding technical upgrading requirements on, for, or to permitted wells consistent with the level of regulation necessary in the capacity use area; and provisions concerning the abandonment of wells.
(6) Those other provisions not inconsistent with this chapter as the department finds necessary to implement the purposes of this chapter.
(B) In adopting any regulations and in considering permit applications, revocations, or modifications the department shall consider:
(1) the number of persons using an aquifer and the object, extent, and necessity of their respective withdrawals or uses;
(2) the nature and size of the aquifer;
(3) the physical and chemical nature of any impairment of the aquifer, adversely affecting its availability or fitness for other water uses including public use;
(4) the probable severity and duration of the impairment under foreseeable conditions;
(5) the injury to public health, safety, or welfare which results if the impairment is not prevented or abated;
(6) the kinds of businesses or activities to which the various uses are related;
(7) the importance and necessity of the uses claimed by permit applicants under this section, or of the water uses of the area, and the extent of any injury or detriment caused or expected to be caused to other water uses including public use;
(8) the efficacy of conservation measures with respect to the extent of reuse, reduction of losses to the ground, surface, and atmosphere, and prevention of unreasonable or wasteful use;
(9) diversion from or reduction of flows in other watercourses or aquifers; and
(10) any other relevant factors.
(C) The department may modify or revoke any final action previously taken by it pursuant to the provisions of this section.
Section 49-5-60. (A) In areas declared by the department to be capacity use areas no person shall (after the expiration of that period, not in excess of twelve months, as the department may designate) withdraw, obtain, or utilize groundwaters in excess of the following amounts for any purpose, nor construct a water well with the intent of pumping these amounts, unless the person first obtains a permit for this purpose from the department:
(1) one hundred thousand gallons each day on any day;
(2) one million gallons each month in any month; or
(3) ten million gallons in any twelve consecutive months. Applications for the permits must set forth those facts the department considers necessary to enable it to establish and maintain adequate records of water uses within the capacity use area. No permit is required under this chapter for groundwater use which is for domestic use only.
(B) Upon receipt of an application for a groundwater use permit, which application must be submitted on forms supplied by the department, the department shall require the applicant to publish a notice, in that form as may be prescribed by the department, in a newspaper of general circulation in the county where the groundwater use is proposed. Each applicant shall provide the department an affidavit of publication, along with a copy of the notice published. The notice must inform interested persons of the submission of the application, the location of the well or proposed well, the maximum amount of groundwater to be used, the general nature of the use proposed for the groundwater, and other information considered relevant by the department. Any interested person may submit written comments to the department on any permit application within thirty days following publication of the notice required in this section. The department may, in its discretion, conduct a public information hearing on any application for a groundwater use permit. The department shall also provide a copy of this notice through regular mail to each permitted groundwater user within a one mile radius of the proposed groundwater withdrawal point.
(C) The department shall notify each person making application for a permit of the department's proposed action concerning the permit application, and transmit with the notice a copy of any permit it has proposed to issue, which permit becomes final unless a request for a hearing is made within fifteen days from the date of service of the notice. The department has the power:
(1) to grant the permit with conditions the department considers necessary to implement the regulations adopted pursuant to Section 49-5-50;
(2) to grant any temporary permit for the time the department specifies where conditions make the temporary permit essential, even though the action allowed by the permit may not be consistent with the department's regulations applicable to the capacity use area;
(3) to modify, suspend, or revoke any permit upon not less than thirty days' written notice to any person affected; and
(4) to deny the permit if the application for it or the effect of the water use proposed or described in the permit upon the water resources of the area is found to be contrary to public interest.
(D) Any person aggrieved in a manner or to a degree significantly different from the general public by the proposed action of the department on any permit application as specified in subsection (C) may request a hearing before an Administrative Law Judge pursuant to the Administrative Procedures Act.
(1) Any appeal of a decision by the Administrative Law Judge shall be made to the board pursuant the provision of the Administrative Procedures Act.
(2) The burden of proof at any hearing under this chapter is upon the person or the department, as the case may be, at whose instance the hearing is being held.
(3) The board of the department has the authority to adopt a seal which must be judicially noticed by the courts of the State. Any document, proceeding, order, degree, special order, regulation, rule of procedure, or any other official act or records of the board of the department or its minutes may be certified by the director of the department under his hand and the seal of the department and when so certified must be received in evidence in all actions or proceedings in the courts of the State without further proof of the identity of the records if the records are competent, relevant, and material in the action or proceeding. The board of the department shall have the right to take judicial notice of all studies, reports, statistical data, or any other official reports or records of the federal government or of any sister state and all these records, reports, and data may be placed in evidence by the department or by any other person or interested party where material, relevant, and competent.
Section 49-5-70. (A) A permit under Section 49-5-60 must be issued for a period specified as follows:
(1) ten years; or
(2) a period found by the department to be reasonable based upon review of relevant factors and circumstances pertaining to the proposed groundwater use. Permits may be renewed following their expiration upon compliance with the provisions of Section 49-5-60.
(B) Permits may not be transferred except with the approval of the department.
(C) Every person in a capacity use area who is required by this chapter to secure a permit shall file with the department in the manner prescribed by the department a certified statement of quantities of water used and withdrawn, sources of water, and the nature of the use of the water not more frequently than thirty-day intervals. These statements must be filed on forms furnished by the department within ninety days after the adoption of an order by the department declaring a capacity use area.
(D) If any person who is required to secure a permit under this chapter is unable to furnish accurate information concerning amounts of water being withdrawn or used, or if there is evidence that his certified statement is false or inaccurate or that he is withdrawing or using a larger quantity of water or under different conditions than has been authorized by the department, the department has the authority to require the person to install water meters, or some other more economical means for measuring water use acceptable to the department. In determining the amount of water being withdrawn or used by a permit holder or applicant the department may use the rated capacity of his pumps, the rated capacity of his cooling system, data furnished by the applicant, or the standards or methods employed by the United States Geological Survey in determining these quantities or by any other accepted method.
(E) The department may require an applicant or permittee to construct, test, maintain, and monitor observation wells if reasonably necessary to evaluate the impact of a proposed or permitted well, mine, or pond on aquifers, water courses, existing or potential water users, land subsidence, or groundwater quality.
(F) In any case where a permit applicant can prove to the department's satisfaction that the applicant was withdrawing or using water before the date of declaration of a capacity use area, the department shall take into consideration the extent to which the prior use or withdrawal was reasonably necessary in the judgment of the department to meet his needs and grant a permit which meets those reasonable needs. The granting of the permit must not encourage waste and must not have unreasonably adverse effects upon other water uses in the area, including public use, and including potential as well as present use.
(G) The department shall also take into consideration in the granting of any permit the prior investments of any person in lands and plans for the usage of water in connection with these lands which plans have been submitted to the department within a reasonable time after the declaration of a capacity use area. The granting of the permit must not have unreasonably adverse effects upon other water uses in the area, including public use, and including potential as well as present use.
(H) Pending the issuance or denial of a permit pursuant to subsection (F) or (G) of this section, the applicant may continue the same withdrawal or use which existed before the date of declaration of the capacity use area.
Section 49-5-80. The department may conduct those investigations as may reasonably be necessary to carry out its duties prescribed in this chapter, and for this purpose to enter at reasonable times upon any property, public or private, for the purpose of investigating the condition, withdrawal, or use of any waters, investigating water sources, or investigating the installation or operation of any well and to require written statements or the filing of reports under oath with respect to pertinent questions relating to the installation or operation of any well. No person may be required to disclose any secret formula, processes, or methods used in any manufacturing operation or any confidential information concerning business activities carried on by him or under his supervision. No person may refuse entry or access to any authorized representative of the department who requests entry for the purposes of a lawful inspection and who presents appropriate credentials, nor may any person obstruct, hamper, or interfere with this representative while in the process of carrying out his official duties consistent with the provisions of this chapter.
Section 49-5-90. (A) The department may adopt and modify regulations to implement the provisions of this chapter.
(B) The department is authorized to cooperate with other state agencies and agencies of the federal government to the extent practical in the implementation of this chapter. The department may enter into or execute memoranda of understanding, agreements, or like instruments for purposes of coordinating administration of the programs of this chapter with any related or similar programs administered by a federal agency or another agency of the State.
Section 49-5-100. (A) Any person violating any provision of this chapter is guilty of a misdemeanor and, upon conviction, must be fined not less than one hundred dollars nor more than one thousand dollars for each violation. In addition, if any person is adjudged to have committed the violation wilfully, the court may determine that each day during which the violation continued constitutes a separate offense.
(B) Upon violation of any of the provisions of this chapter, or the regulations of the department, the department, either before or after the institution of criminal proceedings, may also institute a civil action in the circuit court in the name of the State for injunctive relief. Neither the institution of the actions nor any of the proceedings on the actions relieve any party to the proceedings from the penalty prescribed by this chapter for any violation of these provisions or regulations.
(C) In addition to the criminal penalties authorized in subsection (A) and the injunctive relief authorized in subsection (B), any person whom the department determines to be in violation of any provision of this chapter or any regulation, permit or permit condition, final determination or order of the department may be assessed a civil penalty by the department of not less than fifty dollars nor more than one thousand dollars for each day of violation. The department may also issue an order requiring the person to comply with the provisions of this chapter, regulation, permit or permit condition, final determination or order, including an order requiring modification or abandonment of any well when considered necessary to protect groundwater. All civil penalties collected pursuant to this subsection must be deposited in the general fund of the State.
Section 49-5-110. Flowing wells that flow at a rate of greater than five thousand gallons a day at any time are an unreasonable use of groundwater constituting waste and are prohibited, except that these wells may be utilized as artesian wells to the extent actually necessary for a specific use. These wells must be fitted with a mechanism to restrict the flow of water if the flow is in excess of that necessary for the specific use. The Department of Health and Environmental Control may promulgate regulations to govern use of these wells in this State.
Section 49-5-120. Nothing contained in this chapter changes or modifies existing common or statutory law with respect to the rights of the use of surface water in this State.
Section 49-5-130. The Department of Health and Environmental Control may negotiate agreements, accords, or compacts on behalf of and in the name of the State with other states or the United States, or both, with an agency, department, or of either, or both, relating to withdrawal or diversion of groundwater that impacts the groundwater of this State, or are connected to those waters. Any interstate compacts made by the department by authority of this chapter are subject to approval by joint resolution of the General Assembly. The department may represent this State in connection with groundwater withdrawals, diversions, or transfers occurring in other states which may affect this State."
Commission changed to department; council and names revised
SECTION 1247. Chapter 6, Title 49 of the 1976 Code is amended to read:
"CHAPTER 6
Aquatic Plant Management
Section 49-6-10. There is hereby created the South Carolina Aquatic Plant Management Program for the purpose of preventing, identifying, investigating, managing, and monitoring aquatic plant problems in public waters of South Carolina. The program will coordinate the receipt and distribution of available federal, state, and local funds for aquatic plant management activities and research in public waters.
The Department of Natural Resources (department) is designated as the state agency to administer the Aquatic Plant Management Program and to apply for and receive grants and loans from the federal government or such other public and private sources as may be available for the Aquatic Plant Management Program and to coordinate the expenditure of such funds.
Section 49-6-20. There is created the South Carolina Aquatic Plant Management Trust Fund which must be kept separate from other funds of the State. The fund must be administered by the department for the purpose of receiving and expending funds for the prevention, management, and research of aquatic plant problems in public waters of South Carolina. Unexpended balances, including interest derived from the fund, must be carried forward each year and used for the purposes specified above. The fund shall be subject to annual audit by the Office of the State Auditor.
The fund is eligible to receive appropriations of state general funds, federal funds, local government funds, and funds from private entities including donations, grants, loans, gifts, bond issues, receipts, securities, and other monetary instruments of value. All reimbursements for monies expended from this fund must be deposited in this fund.
Section 49-6-30. There is hereby established the South Carolina Aquatic Plant Management Council, hereinafter referred to as the council, which shall be composed of ten members as follows:
1. The council shall include one representative from each of the following agencies, to be appointed by the chief executive officer of each agency:
(a) Water Resources Division of the Department of Natural Resources;
(b) South Carolina Department of Health and Environmental Control;
(c) Wildlife and Freshwater Fish Division of the Department of Natural Resources;
(d) South Carolina Department of Agriculture;
(e) Coastal Division of the Department of Health and Environmental Control;
(f) South Carolina Public Service Authority;
(g) Land Resources and Conservation Districts Division of the Department of Natural Resources;
(h) South Carolina Department of Parks, Recreation and Tourism;
(i) Clemson University, Department of Fertilizer and Pesticide Control.
2. The council shall include one representative from the Governor's Office, to be appointed by the Governor.
3. The representative of the Water Resources Division of the Department of Natural Resources shall serve as chairman of the council and shall be a voting member of the council.
The council shall provide interagency coordination and serve as the principal advisory body to the department on all aspects of aquatic plant management and research. The council shall establish management policies, approve all management plans, and advise the department on research priorities.
Section 49-6-40. The department, with advice and assistance from the council, shall develop an Aquatic Plant Management Plan for the State of South Carolina. The plan shall describe the procedures for problem site identification and analysis, selection of control methods, operational program development, and implementation of operational strategies. The plan shall also identify problem areas, prescribe management practices, and set management priorities. The plan shall be updated and amended at appropriate intervals as necessary; provided, however, problem site identification and allocation of funding shall be conducted annually. In addition, the department shall establish procedures for public input into the plan and its amendments and priorities. The public review procedures shall be an integral part of the plan development process. When deemed appropriate, the department may seek the advice and counsel of persons and organizations from the private, public, or academic sectors.
The council shall review and approve all plans and amendments. Approval shall consist of a two-thirds vote of the members present. The department shall have final approval authority over those sections which do not receive two-thirds approval of the council."
Dams and reservoirs provisions revised
SECTION 1248. Chapter 11 of Title 49 of the 1976 Code is amended to read:
"CHAPTER 11
Dams
Article 1
General Provisions
Section 49-11-10. No person shall be permitted or allowed to make or keep up any dam or bank to stop the course of any waters so as to overflow the lands of another person without the consent of such person first had and obtained nor shall any person be permitted or allowed to let off any reserved water to injure the crops upon the grounds of other persons.
Section 49-11-20. Nothing contained herein shall be construed to authorize any person to keep water at any time on any lands other than his own.
Article 3
Dams and Reservoirs Safety Act
Section 49-11-110. This article shall be cited as the `Dams and Reservoirs Safety Act.'
Section 49-11-120. Unless the context otherwise requires, as used in this article:
(1) `Alterations' and `repairs' mean only the alterations or repairs which may affect the safety of a dam or reservoir.
(2) `Appurtenant works' include, but are not limited to, structures such as spillways, either in the dam or separate from it, low-level outlet works, and water conduits.
(3) `Department' means the South Carolina Department of Health and Environmental Control or its staff or agents.
(4) `Dam' means an artificial barrier with appurtenant works, including, but not limited to, dams, levees, dikes, or floodwalls for the impoundment or diversion of waters or other fluids where failure may cause danger to life or property. However, this does not include a dam:
(a) less than twenty-five feet in height from the natural bed of the stream or watercourse measured at the downstream toe of the dam, or less than twenty-five feet from the lowest elevation of the outside limit of the dam, if it is not across a stream channel or watercourse, to the maximum water storage elevation and has an impounding capacity at maximum water storage elevation of less than fifty-acre feet unless a situation exists where the hazard potential as determined by the department is such that dam failure or improper reservoir operation may cause loss of human life;
(b) owned or operated by a department or an agency of the federal government;
(c) owned or licensed by the Federal Energy Regulatory Commission, the South Carolina Public Service Authority, the Nuclear Regulatory Commission, the United States Corps of Engineers, or other responsible federal licensing agencies considered appropriate by the department;
(d) upon which the Department of Transportation or county or municipal governments have accepted maintenance responsibility for a road or highway where that road or highway is the only danger to life or property with respect to failure of the dam.
(5) `Districts' means the soil and water conservation districts of this State. For the purposes of this article the districts may serve as agents and advisors to the department.
(6) `Danger to life or property' means a situation exists where the hazard potential as determined by the department is such that dam failure or improper reservoir operation may cause injury to persons, loss of human life, or damage to property.
(7) `Detailed inspection' means all studies, investigations, and analyses necessary to evaluate conclusively the structural safety and hydraulic capacity of a dam or reservoir and appurtenant works. This inspection includes, but is not limited to, soil analyses, concrete or earth stability analyses, materials testing, foundation explorations, and hydrologic analyses, including basin studies and flood potential. This inspection must be performed by a qualified registered professional engineer.
(8) `Enlargement' means a change in or an addition to an existing dam or reservoir which raises or may raise the water storage elevation of the water impounded by the dam or reservoir.
(9) `Owner' means those who own, control, operate, maintain, manage, or propose to construct a dam or reservoir.
(10) `Removal' means destruction or breaching of an existing dam or drainage of water impoundment or reservoir.
(11) `Reservoir' means a reservoir which contains the impoundment of water by a dam or reservoir.
(12) `Order' means a written document prepared and issued by the department which mandates specific actions to be accomplished by a dam owner within a specified time frame. Failure to comply makes the owner subject to penalties outlined in Section 49-11-260.
(13) `Unsafe' means the condition of the dam is such that repairs or alterations are necessary to reduce the risk of dam failure.
Section 49-11-130. It is the purpose of this article to provide for the certification and inspection of certain dams in South Carolina in the interest of public health, safety, and welfare in order to reduce the risk of failure of the dams, prevent injuries to persons and damage to property, and confer upon the department the regulatory authority to accomplish the purposes.
Section 49-11-140. The authority for the safe maintenance of the dams and reservoirs of this State and the powers of inspection and certification provided in this article are the responsibility of the department. The department may employ engineers and technicians it considers necessary to implement this article for which appropriations are available.
Section 49-11-150. The owner of a dam or reservoir constructed in this State solely is responsible for maintaining the dam or reservoir in a safe condition throughout the life of the structure. The owner of a dam or reservoir shall inform the department in writing within thirty days after title to the dam or reservoir legally has been transferred from his ownership. The notice must include the name and address of the new owner. The owner of a dam or reservoir whose failure likely would cause loss of life or substantial property damage, a dam or reservoir classified as a high or significant hazard under existing regulations, shall provide the department a current emergency action plan in the format the department by regulation requires.
Section 49-11-160. The department may issue an order directing the owner of a dam or reservoir to make at his expense the necessary maintenance, alteration, repair, or removal upon a finding that the dam or reservoir:
(a) is or has become unsafe and is dangerous to life or property;
(b) is not maintained in good repair or operating condition; or
(c) is not maintained or operated in accordance with the terms and conditions of the certificate of completion and operation issued by the department.
Section 49-11-170. (A) The existence of a dam which is not maintained in good repair or operating condition or may be unsafe and a danger to life or property may be brought to the attention of the department by complaint, staff, or authorized investigation or by other means.
(B) Upon staff or other authorized investigations or upon receipt of a written private complaint alleging that the person or property of the complainant is endangered by the construction, maintenance, operation, or condition of a dam or reservoir, the department shall cause a preliminary inspection of the structure and downstream development to be made by field observations to determine if the complaint is meritorious. The department may require the owner of the dam or reservoir to provide data, records, and design plans of the structure specified by regulations.
(C) If upon the preliminary inspection it is determined that the dam or reservoir is unsafe and is dangerous to life or property, the department may order the owner at his expense to make a detailed inspection of the dam and reservoir and surrounding area and to provide to the department within a time frame specified by the department plans prepared by a qualified registered professional engineer for correction of all deficiencies of the dam or to provide to the department plans and specifications for removal of the dam. In either instance the plans must be approved by the department before implementation and implemented within a time frame specified by the department. If upon inspection it is determined that the dam or reservoir has not been maintained in good repair or operating condition, the department may order the owner at his expense to accomplish the necessary maintenance or to obtain a permit for removal and to remove the dam within a time frame specified by the department.
(D) The department shall give the owner notice of its action when:
(1) a complaint has been filed alleging that the owners' dam or reservoir is unsafe and a danger to life or property stating the nature of the complaint;
(2) a preliminary inspection has been made with findings.
(E) The owner of a dam or reservoir determined through a preliminary inspection not to be maintained in good repair or operating condition or to be unsafe and a danger to life or property may request a hearing before the board of the department within thirty days after notice of the findings are delivered. The owner may submit written or present oral evidence which must be considered by the board of the department in the issuance of the order.
Section 49-11-180. (A) The department may solicit voluntary compliance by the owner of a dam or reservoir found to be unsafe and a danger to life or property to take remedial steps necessary to render the dam safe.
(B) Extension of time to complete work specified in an order may be granted by the department. No extension may be granted when there appears substantial and immediate danger of dam failure.
Section 49-11-190. (A) The department immediately shall order remedial measures necessary to protect life or property if the condition of a dam or reservoir is so dangerous to the safety of life or property as not to permit time for the issuance and enforcement of a repair order or passing or imminent floods threaten overtopping erosion or destruction of a dam or reservoir capable of danger to life or property.
(B) In applying emergency measures the department has the following limited powers to order the owner to:
(1) lower the water level by releasing water from the reservoir;
(2) empty the reservoir completely;
(3) take other steps essential to safeguard life and property.
(C) For an emergency where the owner finds repairs are necessary to safeguard life or property, he may start the repairs immediately but shall notify the department at once of the proposed repair and work underway.
(D) When the owner fails to comply with the emergency order or cannot be ascertained or found, the department or its authorized agents may enter and immediately take actions necessary to provide protection to life or property, including removal of the dam. The department may recover from the owner, in the name of the State, the expenses incurred in taking the action in the same manner debts are recoverable by law.
Section 49-11-200. (A) The construction of a new dam or reservoir or enlargement, removal, or repair may not begin until the owner has applied for and obtained from the department written approval of plans and specifications.
(B) Where the location and size of the dam or reservoir renders the requirements of subsection (A) and Section 49-11-210 unnecessary, the department may grant approval and waive certain nonessential requirements in instances, including, but not limited to, small dams and reservoirs for agricultural, fish or wildlife, or recreational uses on private lands and of no danger to other life or property downstream.
Section 49-11-210. A separate application for each dam or reservoir and all enlargements, removals, or repairs to existing dams or reservoirs must be filed with the department upon forms to be provided by it, except only one application need be filed for a dam and the reservoir which will contain the water impounded by the dam. The application must be accompanied by maps and plans and specifications of a character and size and setting forth pertinent details and dimensions required by regulation. The application for construction of a new dam or reservoir whose failure likely would cause loss of life or substantial property damage, a dam or reservoir classified as high or significant hazard under existing regulations, must include a fully-developed emergency action plan in a format the department by regulation requires. After the dam or reservoir is constructed, this emergency action plan must be updated by the owner of the dam or reservoir each time it becomes noncurrent.
Section 49-11-220. An applicant for approval of a dam or reservoir subject to Section 49-11-200 also shall file with the department a design approved by a registered professional engineer legally qualified in the State. Dams designed by the USDA-Soil Conservation Service or other federal agencies do not require certification by a registered professional engineer.
Section 49-11-230. (A) The department may make necessary inspections during construction of new dams and reservoirs, enlargements, removal, and repairs of dams and reservoirs and during work done pursuant to repair orders to assure compliance with the approved plans and specifications or provisions of the order.
(B) If water is to be released during the construction, repair, or removal, the department shall specify the maximum discharge rate allowable to avoid endangering or causing injury to downstream owners.
Section 49-11-240. (A) The department or its authorized agents may inspect the dam or reservoir and surrounding area to determine the safety of the structure.
(B) An authorized member, agency, or representative of the department may enter state or private lands and natural or artificial waterways in the State to discharge the duties set forth in this article.
(C) The department shall formulate reasonable regulations, including, but not limited to, minimum safety design standards for impoundments, safety inspection standards, water discharge, or drawdown rates and levels in unsafe impoundments and for other purposes necessary to administer this article.
(D) The department shall issue all orders, permits, or licenses set forth in this article.
Section 49-11-250. Nothing in this article and no action or failure to act under this article:
(1) imposes liability on the State, the department, districts, or an agency or its officers or employees for the recovery of damages caused by the action or failure to act; or
(2) relieves the owner or operator of a dam or reservoir of the duties, obligations, responsibilities, or liabilities arising from or incident to the ownership or operation of a dam or reservoir.
Section 49-11-260. (A) A person violating this article is guilty of a misdemeanor and, upon conviction, must be fined not less than one hundred nor more than five hundred dollars. Each day the violation continues after notice to take corrective action is a separate offense.
(B) The department may assess an administrative fine of not less than one hundred nor more than one thousand dollars against a person who violates this article or an order issued or regulation promulgated pursuant to it. In determining the amount of the fine the department shall consider the degree and extent of harm caused by the violation and the cost of rectifying the damage. Fines assessed under this subsection may be appealed to the department who may reduce them based on information presented at the appeal hearing.
(C) Upon a violation of this article or related regulations the department may institute legal action to obtain injunctive relief in the name of the department.
(D) A person against whom a final order or decision has been made, except for emergencies specified in Section 49-11-190, may appeal to the board under the Administrative Procedures Act. The burden of proof is on the party attacking an order or a decision of the department to show that the order is unlawful or unreasonable.
(E) Civil fines collected under this article must be deposited in a special account of the department to fund educational activities relating to dams and reservoirs safety, including, but not limited to, workshops, seminars, manuals, and brochures."
River basin provisions revised
SECTION 1249. Chapter 21, Title 49 of the 1976 Code is amended to read:
"CHAPTER 21
Interbasin Transfer of Water
Section 49-21-10. For purposes of this chapter:
(1) `Department' or `DHEC' means the South Carolina Department of Health and Environmental Control;
(2) `River basin' means the area drained by a river and its tributaries or through a specified point on a river, as determined in subsection (7) of Section 49-21-60;
(3) `Receiving river basin' means a river basin which is the recipient of an increase in water, over and above that occurring naturally, as the result of a diversion or transfer of water from a different river basin;
(4) `Losing river basin' means a river basin which sustains a decrease in water as the result of a diversion or transfer of water to a different river basin and there is no significant return of the water to the river basin of origin;
(5) `Person' means any and all persons, including individuals, firms, partnerships, associations, public or private institutions, municipalities or political subdivisions, federal or state governmental agencies, or private or public corporations organized under the laws of this State or any other state or country.
(6) `Board' means the board of the department.
Section 49-21-20. Following the effective date of this chapter, no person shall withdraw, divert, pump, or cause directly the transfer of either five percent of the seven-day, ten-year low flow, or one million gallons or more of water a day on any day, whichever is less, from one river basin and use or discharge all or any part of the water in a different river basin unless the person shall first obtain a permit from the department.
Section 49-21-30. A. The department may grant, deny, or issue with conditions as to quantity or qualities of water, a permit to any person for any interbasin transfer of water upon application for a permit, opportunity for public comment, and a hearing before the department, if the department finds the criteria in subsections B, C, D, and E are met.
B. The applicant shall specify the location of all collection, withdrawal, and transportation facilities and additional information as the department may require. The department shall publish notice of the permit application once a week for four consecutive weeks in a newspaper of general circulation in each river basin area to be affected by the transfer; the department shall publish the notice in the State Register; and the department shall provide notice to each holder of an interbasin water transfer permit within the proposed losing river basin by mailing a notice by registered or certified mail, return receipt requested.
C. In making its determination whether transfer may be permitted, the department shall:
(1) Protect present, and consider projected stream uses of the losing river basin generally and of the losing river specifically including, but not limited to, present agricultural, municipal, industrial and instream uses, and assimilative needs.
(2) Protect water quality of the losing river basin.
(3) Consider reasonably foreseeable future water needs of the losing river basin.
(4) Consider the reasonably foreseeable future water needs of the applicant for the water to be transferred, including methods of water use, conservation, and efficiency of use.
(5) Consider beneficial impact on the State and its local subdivisions of any proposed transfer, and the capability of the applicant to implement effectively its responsibilities under the requested permit.
(6) Consider the nature of the permittee's use of the water, to determine whether the use is reasonable and beneficial.
(7) Consider whether the proposed project shall promote and increase the storage and conservation of water.
(8) Consider the feasibility of alternative sources of supply and their comparative costs.
(9) Consider impact on interstate water use.
(10) Consider requirements of other state or federal agencies with authority relating to water resources.
(11) Consider availability of water in the losing river basin to respond to emergencies, including drought.
(12) Consider whether the project shall have any beneficial or detrimental impact on navigation, hydropower generation, fish and wildlife habitat, aesthetics, or recreation.
(13) Consider such other facts and circumstances as are reasonably necessary to carry out the purposes of this chapter.
D. (a) In addition to the requirements in subsection C. of this section, the department shall not issue a transfer permit except upon certification by the department that the proposed interbasin transfer of water shall neither:
(1) Violate the water classification standard system regulation or the stream classification regulation, nor
(2) Adversely affect the public health and welfare. Through its certification DHEC shall insure the protection of the water quality and health of the losing river basin and shall insure the protection of the present and permitted assimilative needs of the losing river basin. DHEC shall use data from stream modeling and instream sampling in making its certification. DHEC may issue a certification with conditions which must be made part of any permit issued pursuant to this chapter.
(b) The department may not deny an interbasin transfer permit on the basis of water quality when it has certified that the water quality of the losing basin or the receiving basin is not adversely affected. E. In order to protect the water uses of the losing river basin, the department, in determining the amount of water to be approved, may conduct or have conducted instream sampling and stream modeling to predict the volumes of water which may be transferred. Transferable amounts may vary to accommodate seasonal water conditions in the losing river basin. No transfer of water may be permitted at any time which shall cause the remaining flow in the losing river basin to be less than the statistical low flow that occurs for seven consecutive days, once every ten years as established prior to the interbasin transfer.
F. The permit shall specify the location of all collection, withdrawal, transmission, and discharge facilities to be used or constructed to effect the interbasin transfer and shall specify the amount or amounts which can be withdrawn. The permit shall require that the interbasin transfer shall cease or decrease when the actual flow of the losing basin is less than a specified minimum required to protect against adverse effects to the basin. The permit shall further require that the permittee comply with other requirements as may be advisable to promote an adequate water supply for the State and to mitigate any adverse conditions or effects which the department finds exist, but are not sufficient to require denial of the permit.
G. Any riparian landowner or person legally exercising rights to use water, suffering material injury for the loss of water rights as a consequence of an interbasin transfer shall have a cause of action against the water transferor in the court of common pleas of the county in which the water transfer originates to recover all provable damages for loss of riparian rights including increases in operating costs, lost production, or other damages directly caused him by the interbasin transfer; provided, however, this subsection G does not apply to transfers authorized under item (2) of subsection A of Section 49-21-50; provided, further, the immediately preceding proviso may not be construed to abridge or alter causes of actions in the civil courts under the common law or statutory laws existing prior to the effective date of this chapter and any such cause of action against the water transferor must be brought in the court of common pleas of the county in which the transfer originates. The burden of proof is on the person alleging damages.
Section 49-21-40. A. No permit under Section 49-21-20 may be issued for a longer period than the longest of the following, unless the applicant requests a shorter period:
(1) twenty years; or
(2) a period found by the department to be reasonable based upon review of all relevant facts and circumstances pertaining to the proposed water transfer but for a period no longer than forty years.
B. The department may modify, suspend, or revoke any water transfer permit, including authority to transfer water pursuant to Section 49-21-50, for good cause consistent with the following procedures:
(1) Before any permit may be modified, suspended, or revoked the department shall give the permittee notice of the proposed action and afford the permittee an opportunity for a hearing before the board. Any hearing must be conducted pursuant to the South Carolina Administrative Procedures Act (Act 176 of 1977).
(2) All hearings under this section must be before an Administrative Law Judge.
(3) A full and complete record of all proceedings at any hearing under this chapter must be taken by a reporter appointed by the by an Administrative Law Judge or by other method approved by the Attorney General. Any party to a proceeding is entitled to a copy of the record upon the payment of the reasonable cost as determined by the Administrative Law Judge.
(4) The burden of proof at any hearing under this subsection B is upon the moving party.
(5) Any appeal of the decision by the Administrative Law Judge shall be made to the board pursuant to the provisions of the Administrative Procedures Act.
(6) Judicial review and stays of enforcement of the decision of the board must be pursuant to the South Carolina Administrative Procedures Act, but any petition for judicial review or stay of the decision of the board must be filed in the circuit court in the county in which the subject permitted water transfer originates.
C. Permits may be renewed following their expiration upon a full review of all factors considered issuing a permit for the first time.
D. Permits may not be transferred except with the approval of the department.
Section 49-21-50. A. Any person diverting or transferring or having substantially under construction facilities to divert or transfer five percent of the seven-day, ten-year low flow or one million gallons or more of water a day from one river basin and using or discharging all or any part of the water in a different river basin on the effective date of this chapter may continue the transfer subject to the following conditions:
(1) The transfer must be registered with the department within six months of the effective date of this chapter.
(2) The total amount of the transfer daily shall not exceed the larger of (i) the capacity of the facilities used to transfer water on December 1, 1984, or (ii) facilities to transfer water substantially under construction on December 1, 1984, or (iii) any water withdrawal project under contract approved by the Federal Energy Regulatory Commission prior to December 1, 1984.
(3) Any increase in water transferred over the amount authorized in item (2) of this section must be reviewed and permitted in accordance with Section 49-21-20.
(4) In any event, a transfer authorized under this section must be reviewed under the criteria of Section 49-21-30 upon the occurrence of any of the following conditions:
(i) the cessation of the transfer for any reason for a continuous period of three years;
(ii) following a period from the effective date of this chapter no longer than the longest of the following:
(a) twenty years, or
(b) a period found by the department to be reasonable based upon review of all relevant facts and circumstances pertaining to the existing water transfer, but the period may be not longer than forty years, or
(c) for existing transfers pursuant to item (2) of subsection A of Section 49-21-50, upon conclusion of the maximum useful life of the transfer facilities or water withdrawal project under contract not to exceed forty years from December 1, 1984.
B. The provisions of this chapter shall take precedence over any other state regulatory provision pertaining to the subject of this chapter.
Section 49-21-60. A. The department may promulgate regulations to carry out the intent of this chapter including, but not limited to, the following:
(1) Development of applications.
(2) The conduct of public hearings to be conducted at the discretion of the department.
(3) Provisions to ensure public notice of applications and submission of comments from the public.
(4) Coordination of comments from interested state agencies.
(5) Provisions to identify persons who may be adversely affected by a water transfer and allowing any of the persons to be heard by the department prior to final action on a permit application.
(6) Provisions requiring special conditions on any permit necessary to protect the health, safety, or welfare of losing or receiving river basins.
(7) The department shall by regulation delineate and designate river basins. In undertaking this task, the department shall initially establish fifteen river basins, including the watershed of each of the following fifteen rivers or river systems:
(a) Upper Savannah;
(b) Lower Savannah;
(c) Saluda;
(d) Broad;
(e) Congaree;
(f) Catawba-Wateree;
(g) Lynches;
(h) Pee Dee;
(i) Little Pee Dee;
(j) Black;
(k) Waccamaw;
(l) Lower Santee;
(m) Edisto;
(n) Ashley-Cooper;
(o) Combahee-Coosawhatchie.
Prior to any designation or delineation of any additional river basins, they must first be approved by act of the General Assembly.
Section 49-21-70. A. Any person violating any provision of this chapter is guilty of a misdemeanor and, upon conviction, must be fined not less than one thousand dollars nor more than ten thousand dollars for each violation. In addition, if any person is adjudged to have committed a violation of this chapter wilfully, the court may determine that each day during which the violation continued constitutes a separate offense.
B. Upon violation of any of the provisions of this chapter, or the regulations of the department, the director may, either before or after the institution of criminal proceedings, institute a civil action in the circuit court in the name of the State for injunctive relief. Neither the institution of the actions nor any of the proceedings relating to them shall relieve any party to the proceedings from the penalty prescribed by this chapter for any violation of the provisions of this chapter.
Section 49-21-80. The board is empowered to negotiate agreements, accords, or compacts on behalf of and in the name of the State with other states or the United States, or both, with any agency, department, or commission of either, or both, relating to transfers of water that impact waters of this State, or are connected to or flowing into those waters. Any interstate compacts made by the board by authority of this chapter are subject to approval by concurrent resolution of the General Assembly. The board is further empowered to represent this State in connection with water withdrawals, diversions, or transfers occurring in other states which may affect this State."
Commission changed to department; names revised
SECTION 1250. Chapter 23, Title 49 of the 1976 Code is amended to read:
"CHAPTER 23
South Carolina Drought Response
Act of 1985
Section 49-23-10. This chapter may be cited as the South Carolina Drought Response Act of 1985.
Section 49-23-20. In this chapter:
(a) `Department' means the Department of Natural Resources.
(b) `Conservation' means a reduction in usage of water, to prevent depletion or waste of the resource.
(c) `Drought response committee' means the committee created under Section 49-23-50 to be convened to address drought related problems and responses.
(d) `Office of primary responsibility' means the Department of Natural Resources.
(e) `Person' means any and all persons, including individuals, firms, partnerships, associations, public or private institutions, municipalities or political subdivisions, governmental agencies, or private or public corporations organized under the laws of this State or any other state or country.
(f) `Water resources' means any and all water on or beneath the surface of the ground, including natural and artificial water courses, lakes or ponds, and water percolating, standing, or flowing beneath the surface of the ground.
(g) `Diffused surface water' means waters of a casual or vagrant character, lying or running on the surface of the earth but not in definite courses, streams, or waterbodies.
(h) `Incipient drought' means that there is a significant threat of a drought as indicated by a Palmer Index of -0.50 to -1.49. The incipient drought phase will initiate inhouse mobilization by department personnel and the drought response committee. The State Climatology Office, which routinely monitors the climatic variables, will inform those agencies on the notification list that a portion of the State is experiencing an incipient drought condition. The department will increase monitoring activities to identify any change in existing conditions.
(i) `Moderate drought' exists when the Palmer Index reaches the -1.50 to -2.99 range and moderate drought conditions have developed as verified by other means. If conditions indicate that this situation will persist, statements will be released to the news media by the State Climatologist, and appropriate agencies will accelerate monitoring activities.
(j) `Severe drought' exists when the Palmer Index reaches the -3.00 to -3.99 range and severe drought conditions are verified by other means. This phase will be verified utilizing data from various agencies in conjunction with National Weather Service forecasts and routinely monitored data. A drought of this severity will normally require an official declaration by the department and water-use restrictions.
(k) `Extreme drought' exists when the Palmer Index reaches or falls below -4.00 and extreme drought conditions are verified by other means. The State Climatology Office will continue to evaluate information from various sources. Upon confirmation of an Extreme Drought Alert Phase, the drought response committee may recommend that the Governor issue a public statement that an extreme drought situation exists and that appropriate water-use restrictions be imposed.
(l) `Board' means the governing authority of the Department of Natural Resources.
Section 49-23-30. The department shall formulate, coordinate, and execute a comprehensive drought response plan. The plan must be developed consistent with the South Carolina Water Resources Planning and Coordination Act (Chapter 3 of Title 49) to the extent that the plan is compatible with the comprehensive state water resources policy. In carrying out these responsibilities, the department shall seek and utilize to the extent possible the input, resources, and expertise of other state agencies capable of assisting in drought planning and response.
Section 49-23-40. This chapter applies to all of the water resources of the State, but this chapter does not authorize any restriction in use of water from any pond completely situated on private property and fed only by diffused surface water. For the purposes of this chapter, the waters of the State shall include all groundwater and all surface water within the State as defined in Section 49-23-10. The drought response plan shall apply to every person using water in this State.
Section 49-23-50. Consistent with the South Carolina Water Resources Planning and Coordination Act (Chapter 3 of Title 49), the department, without limiting its general authority, may:
(a) routinely monitor and record climatic and other data necessary for the determination of drought conditions;
(b) make investigations it considers proper to determine whether action by the department in discharging its duties is necessary;
(c) determine levels of drought based upon data collected;
(d) establish drought management areas within the State in order to:
(1) enable drought response to be accomplished within defined geographical areas;
(2) prevent overly broad response to drought. Statewide action usually should not be taken in instances in which action in a particular area experiencing drought is more appropriate.
(e) establish drought alert phases based upon drought levels and provide the following kinds of notice of each drought alert phase:
(1) The department shall notify municipal and county governments in the affected drought management area, persons designated on notification lists, and other appropriate agencies and individuals.
(2) The department shall publish notice of each drought alert phase at least once in a newspaper of general circulation in the areas affected.
(3) The department may take any other action appropriate to announce a drought alert.
(f) coordinate and implement responses to announced drought alert phases after required notification;
(g) execute the regulations promulgated by the department reasonably necessary to collect and distribute information, convene committees, promote water conservation, govern practice and procedure before the department and to fulfill its duties and the purposes of this chapter.
Section 49-23-60. (a) The department shall coordinate appropriate drought response upon consultation with a drought response committee. The drought response committee is composed of two parts, as follows:
(1) A statewide committee composed of the following state agencies: South Carolina Preparedness Division of the Office of the Adjutant General, South Carolina Department of Health and Environmental Control, Department of Agriculture, South Carolina Forestry Commission, and South Carolina Department of Natural Resources.
(2) A local committee within each drought management area. The local committees shall consist of the following members to be appointed by the Governor on the recommendation of the legislative delegations from each of the drought management areas to represent the following interests: counties, municipalities, public service districts, private water suppliers, agriculture, industry, domestic users, regional councils government, and commissions of public works. The Governor on the recommendation of the legislative delegations from each of the drought management areas may appoint additional members as necessary to ensure broadbased input on the committee. The statewide committee shall coordinate planning and response within each drought management area only upon consultation with the appropriate local committee. The department shall chair the drought response committee and provide administrative support.
(b) The drought response committee shall convene as necessary upon call by the chair. In carrying out its responsibilities, the drought response committee shall consult with and invite participation by representatives of municipalities, counties, and commissions of public works in affected drought management areas.
(c) The department may consult and cooperate with federal agencies and agencies of the states of Georgia and North Carolina in carrying out its responsibilities under this chapter.
Section 49-23-70. (a) Upon the inception of a drought alert phase, the department is responsible for disseminating public information concerning all aspects of the drought. The initial action in responding to drought must be public education, providing information as to existing and potential conditions and water conservation measures necessary to meet the demand presented at each drought alert phase.
(b) The department shall provide available information on water demands and use to any significant water user, public or private, in order to promote voluntary water conservation.
(c) The department may promulgate regulations to specify categories of nonessential water use. Water used strictly for firefighting purposes, health and medical purposes, maintaining instream flow requirements, and the use of water to satisfy federal, state, or local public health and safety requirements is considered essential water use. The department by regulation may provide for the mandatory curtailment of nonessential water uses during periods of severe or extreme drought in drought management areas. Mandatory curtailment of nonessential water use shall become effective only after the drought response committee determines the action to be reasonably necessary to insure supplies of water in drought management areas. Upon such a finding, the drought response committee shall determine which categories of nonessential water use must be curtailed after reviewing each category by the following standards:
(1) the purpose of the use,
(2) the suitability of the use to the watercourse, lake, or aquifer,
(3) the economic value of the use,
(4) the social value of the use,
(5) the extent and amount of the harm it causes,
(6) the practicality of avoiding the harm by adjusting the use or method of use of one proprietor or the other,
(7) the practicality of adjusting the quantity of water used by each proprietor,
(8) the protection of existing values of water uses, land, investments, and enterprises,
(9) the consumptive or nonconsumptive nature of the use.
Following such determination, the department shall issue a declaration specifying the drought management areas affected and identifying the categories of nonessential water use to be curtailed. The declaration must be widely distributed to news media and must be published at least once a week in a newspaper of general circulation in each county affected. Any person adversely affected by mandatory curtailment may, within ten days after such curtailment becomes effective, submit appropriate information to the department and obtain relief therefrom as is appropriate. Any declaration shall continue in effect only so long as conditions in any drought management area reasonably require it, and the declaration shall be terminated by action of either the drought response committee or the department, and notice of termination of the declaration must be given as when originally issued. In the event that a declaration issued pursuant to this section conflicts with any ordinance or plan adopted pursuant to Section 49-23-80, the declaration shall supersede any ordinance or plan.
(d) During any drought alert phase, the department may offer its services to mediate any dispute arising from competing demands for water. The mediation may be undertaken only upon the request of the parties involved and may not be binding. Any mediation shall not estop or preclude the department and the drought response committee from taking any other action authorized by this chapter.
Section 49-23-80. In the event the drought response committee determines that drought conditions in any drought management area have progressed to the extent that the safety, security, health, or welfare of the citizens of the area are threatened, the committee shall expeditiously report the conditions to the Governor. The committee shall also present the Governor with a priority list of recommended actions designed to alleviate the effects of drought conditions in affected drought management areas. Pursuant to the authority in Section 21 of Part II of Act 199 of 1979, the Governor may declare a drought emergency. In addition to exercising existing authority pursuant to Section 21 of Part II of Act 199 of 1979, the Governor may issue emergency proclamations and regulations to require mandatory curtailment of water use or to allocate water on an equitable basis. Notwithstanding any provisions of Section 21 of Part II of Act 199 of 1979, emergency action ordered by the Governor in response to a drought emergency may continue so long as conditions giving rise to the declaration of the emergency continue to threaten safety, security, health, or welfare.
Section 49-23-90. (a) Municipalities, counties, public service districts, and commissions of public works engaged in the business or activity of supplying water for any purpose shall develop and implement drought response ordinances, or plans where authority to enact ordinances does not exist. The ordinances or plans must be consistent with the State Drought Response Plan, implemented through the regulations adopted pursuant to this chapter. Within six months of approval by the General Assembly of regulations promulgated to implement this chapter, the department shall prepare and distribute a model drought response ordinance or ordinances.
(b) Local drought ordinances or plans must be adopted within eighteen months of the approval by the General Assembly of regulations adopted pursuant to this chapter; but any proposed ordinance or plan must first be submitted to the department for review to determine consistency with the State Drought Response Plan.
Section 49-23-100. (a) Any person violating any provision of this act is guilty of a misdemeanor and, upon conviction, must be fined not less than fifty dollars nor more than one thousand dollars for each violation. In addition, if any person is adjudged to have committed the violation wilfully, the court may determine that each day during which the violation continued constitutes a separate offense.
(b) In addition, upon violation of any of the provisions of this chapter, or the regulations of the department, the director may, either before or after the institution of criminal proceedings, institute a civil action in the circuit court in the name of the State for injunctive relief. Neither the institution of the actions nor any of the proceedings relating to them shall relieve any party to the proceedings from the penalty prescribed by this chapter for any violation of the provisions of the chapter."
Commission changed to department; director, or board; director changed to state climatologist
SECTION 1251. Chapter 25, Title 49 of the 1976 Code is amended to read:
"CHAPTER 25
Office of State Climatology
Section 49-25-10. There is created within the Department of Natural Resources the South Carolina State Climatology Office.
Section 49-25-20. The director shall appoint the state climatologist who shall serve as director of the office.
Section 49-25-30. The office has the following powers and duties:
1. to serve as a climatological focal point for state government and its agencies;
2. to provide climatological support to the department and other state agencies as required, including collection and analysis of climatic data, such as drought, flood, rainfall, storms, and other climatic information that affect water management in South Carolina;
3. to acquire, archive, process, and disseminate all climatic and weather information which is or may be of value to policy and decision makers in the State;
4. to act as the representative of the State in all climatological and meteorological matters within and outside the State;
5. to prepare, publish, and disseminate regular climatic information for those individuals, agencies, and organizations whose activities are related to the welfare of the State and are affected by climate and weather, and to serve as a source of climatic information for the citizens of South Carolina;
6. to conduct and report on studies of climate and weather phenomena of significant socioeconomic importance to the State;
7. to evaluate the significance of natural, man-made, deliberate, and inadvertent changes or modifications in the climate and weather affecting the State, and to report this information to those agencies and organizations in the State which are likely to be affected by the changes or modifications.
Section 49-25-40. The state climatologist may certify copies as being authentic reproductions of weather records held in the State and shall present a report each year to the board of the Department of Natural Resources concerning the activities of the climatic program and other information which the board may consider necessary."
Names revised
SECTION 1252. Section 49-27-10 of the 1976 Code is amended to read:
"Section 49-27-10. For purposes of this chapter:
(1) `Board' means the board of commissioners of Mecklenburg and Gaston Counties, North Carolina, and the county council of York County, South Carolina.
(2) `Commission' means the Lake Wylie Marine Commission or its governing board as the case may be.
(3) `Commissioner' means a member of the governing board of the Lake Wylie Marine Commission.
(4) `Three counties' means Mecklenburg and Gaston Counties, North Carolina, and York County, South Carolina.
(5) `Joint ordinance' means an ordinance substantially identical in content adopted separately by the board in each of the three counties.
(6) `Lake Wylie' means the impounded body of water along the Catawba River in the three counties extending from the base of Mountain Island Dam downstream to the Catawba Dam.
(7) `Shoreline area' means, except as restricted by a joint ordinance, the area within the three counties lying within one thousand feet of the mean high-water line (five hundred seventy feet) on Lake Wylie. In addition, the shoreline area includes all islands within Lake Wylie and all peninsulas extending into the waters of Lake Wylie.
(8) `Wildlife Commission' means the North Carolina Wildlife Resources Commission and the South Carolina Department of Natural Resources."
Names revised
SECTION 1253. Section 49-27-70 of the 1976 Code is amended to read:
"Section 49-27-70. (A) A copy of the joint ordinance creating the commission and of any joint ordinance amending or repealing the joint ordinance creating the commission must be filed with the Executive Director of the North Carolina Wildlife Resources Commission and the Director of the South Carolina Department of Natural Resources. When the directors receive ordinances that are in substance identical from all three counties concerned, they, in accordance with procedures agreed upon, shall, within ten days, certify this fact and distribute a certified single ordinance text to the following:
(1) the Secretary of State of North Carolina and the Secretary of State of South Carolina;
(2) the clerk to the governing board of each of the three counties;
(3) the clerk of superior court of Mecklenburg and Gaston Counties and the clerk of court of York County. Upon request, the directors also shall send a certified single copy of any and all applicable joint ordinances to the chairman of the commission;
(4) a newspaper of general circulation in the three counties.
(B) Unless a joint ordinance specifies a later date, it shall take effect when the directors' certified text has been submitted to the Secretaries of State for filing. Certifications of the directors under the seal of the commission as to the text or amended text of any joint ordinance and of the date or dates of submission to the Secretaries of State is admissible in evidence in any court. Certifications by any clerk of superior court or county clerk of court of the text of any certified ordinance filed with him by the directors is admissible in evidence and the directors' submission of the ordinance for filing to the clerk shall constitute prima facie evidence that the ordinance was on the date of submission also submitted for filing with the Secretary of State. Except for the certificate of a clerk as to receipt and date of submission, no evidence may be admitted in court concerning the submission of the certified text of any ordinance by the directors to any person other than the Secretary of State."
Names revised
SECTION 1254. Section 49-27-80 of the 1976 Code is amended to read:
"Section 49-27-80. (A) Except as limited in subsection (B) of this section, by restrictions in any joint ordinance, and by other supervening provisions of law, the commission may make regulations applicable to Lake Wylie and its shoreline area concerning all matters relating to or affecting the use of Lake Wylie. These regulations may not conflict with or supersede provisions of general or special acts or of regulations of state agencies promulgated under the authority of general law. No regulations adopted under the provisions of this section may be adopted by the commission except after public hearing, with publication of notice of the hearing in a newspaper of general circulation in the three counties at least ten days before the hearing. In lieu of or in addition to passing regulations supplementary to state law and regulations concerning the operation of vessels on Lake Wylie, the commission may, after public notice, request that the North Carolina Wildlife Resources Commission and the South Carolina Department of Natural Resources pass local regulations on this subject in accordance with the procedure established by appropriate state law.
(B) Violation of any regulation of the commission commanding or prohibiting an act is a misdemeanor punishable by a fine not to exceed two hundred dollars or thirty days' imprisonment.
(C) The regulations promulgated under this section take effect upon passage or upon such dates as may be stipulated in the regulations except that no regulation may be enforced unless adequate notice of the regulation has been posted in or on Lake Wylie or its shoreline area. Adequate notice as to a regulation affecting only a particular location may be by a sign, uniform waterway marker, posted notice, or other effective method of communicating the essential provisions of the regulation in the immediate vicinity of the location in question. Where a regulation applies generally as to Lake Wylie or its shoreline area, or both, there must be a posting of notices, signs, or markers communicating the essential provisions in at least three different places throughout the area and it must be printed in a newspaper of general circulation in the three counties.
(D) A copy of each regulation promulgated under this section must be filed by the commission with the following persons:
(1) the Secretaries of State of North and South Carolina;
(2) the clerk of superior court of Mecklenburg and Gaston Counties and the clerk of court of York County;
(3) the Directors of the Wildlife Resources Commission of North Carolina and the South Carolina Department of Natural Resources.
(E) Any official designated in subsection (D) above may issue certified copies of regulations filed with him under the seal of his office. These certified copies may be received in evidence in any proceeding.
(F) Publication and filing of regulations promulgated under this section as required above is for informational purposes and is not a prerequisite to their validity if they in fact have been duly promulgated, the public has been notified as to the substance of regulations, a copy of the text of all regulations is in fact available to any person who may be affected, and no party to any proceeding has been prejudiced by any defect that may exist with respect to publication and filing. Rules and regulations promulgated by the commission under the provisions of other sections of this chapter relating to internal governance of the commission need not be filed or published. Where posting of any sign, notice, or marker or the making of other communication is essential to the validity of a regulation duly promulgated, it is presumed in any proceeding that prior notice was given and maintained and the burden lies upon the party asserting to the contrary to prove lack of adequate notice of any regulation."
Names revised
SECTION 1255. Section 49-29-210 of the 1976 Code is amended to read:
"Section 49-29-210. A person who violates a provision of this chapter, the regulations promulgated by the management agency under it, or the conditions of the perpetual easements granted to the State under this chapter is guilty of a misdemeanor and may be compelled to comply with or obey the provisions of this chapter by injunction or other appropriate remedy and, upon conviction, must be punished by a fine of not more than five hundred dollars or imprisonment for not more than thirty days for each day of a violation. The provisions of this section do not preclude any applicable action by the Department of Revenue and Taxation to remove or recover property or income tax due it under Section 49-29-100."
Commission changed to department; names revised
SECTION 1256. Chapter 29, Title 49 of the 1976 Code is amended to read:
"CHAPTER 29
South Carolina Scenic Rivers Act
Section 49-29-10. This chapter may be cited as the `South Carolina Scenic Rivers Act of 1989'.
Section 49-29-20. Except as otherwise required by the context:
(1) `Department' means the Department of Natural Resources.
(2) `Free flowing' means existing or flowing in natural condition without impoundment, (diversion) straightening, riprapping, or other modification of the waterway. The existence of low dams, diversion works, and other minor structures at the time a river is proposed for inclusion in the State Scenic Rivers Program does not automatically bar its consideration for inclusion, but this may not be construed to authorize, intend, or encourage future construction of those structures within components of the State Scenic Rivers Program.
(3) `Management agency' means the Department of Natural Resources.
(4) `Mean highwater line' means that line which intersects with the shore in tidal waters representing the average height of high waters over an eighteen and one-half year tidal cycle. Benchmarks purporting to have established mean high or low water values must be verified by the department as meeting state and national ocean survey standards.
(5) `Ordinary highwater mark' means the natural or clear line impressed on the shore or bank in nontidal waters representing the ordinary height of water. It may be determined by bank shelving, changes in the character of the soil, destruction or absence of terrestrial vegetation, the presence of litter or debris, or a combination of the above or other appropriate criteria that consider the characteristics of the surrounding area. Ordinary highwater mark is not the line reached by floods, but it is the line to which ordinary high water usually reaches.
(6) `Perpetual easement' means a perpetual right in land of less than fee simple which:
(a) obligates the grantor and his heirs and assigns to certain restrictions constituted to maintain the scenic qualities of those lands bordering the river as determined by the State under this chapter;
(b) is restricted to the area defined in the easement deed;
(c) grants a privilege to those charged with the administration or enforcement of the provisions of this chapter to go upon the land for the purpose of compliance inspection.
(7) `River' means a flowing body of water or a section, portion, or tributary of it including rivers, streams, creeks, branches, or small natural lakes.
(8) `Road' means a highway or any hard-surface road.
Section 49-29-30. The General Assembly finds that certain selected rivers and river segments of this State possess unique or outstanding scenic, recreational, geologic, botanical, fish, wildlife, historic, or cultural values. It is the policy of the General Assembly to provide for the protection of these selected diminishing values and to preserve the state's natural heritage for the benefit and enjoyment of present and future generations. The provisions of this chapter complement and are considered part of the State Water Resources Plan as formulated by the department.
Section 49-29-40. The following types of rivers are eligible for inclusion in the State Scenic Rivers Program: Natural rivers: those free-flowing rivers or river segments generally inaccessible except by trail or river, with adjacent lands and shorelines essentially undeveloped and its waters essentially unpolluted. Scenic rivers: those rivers or river segments which are essentially free flowing and possess shorelines largely undeveloped and with limited road access. Adjacent lands are partially or predominantly used for agriculture, silviculture, or other dispersed human activity which does not disturb substantially the natural character of the river corridor. Recreational rivers: those rivers or river segments accessible by road and that possess development along shorelines and adjacent lands. Included are rivers with developed or partially developed shorelines and adjacent lands for residential, commercial, or industrial purposes, rivers with parallel roads or railroads, and rivers with some impoundments. These rivers or river segments provide outstanding river-related recreational opportunities.
Section 49-29-50. (A) The department shall inventory and study all South Carolina rivers and identify the rivers or river segments which possess unique or outstanding scenic, recreational, geological, botanical, fish, wildlife, historic, or cultural values in accordance with Section 49-29-70.
(B) Rivers or river segments identified in the inventory as possessing unique or outstanding scenic, recreational, geologic, botanical, fish, wildlife, historic, or cultural values are eligible for the State Scenic Rivers Program and may be designated as an eligible state scenic river by the department. Rivers or river segments so designated are subject to the completion of a management plan and the acquisition of management rights on adjacent riparian lands.
(C) Proposals for including additional rivers or river segments may be made by state agencies, local governments, and other governmental or citizen's groups and submitted to the department for evaluation and study.
Section 49-29-60. The department shall hold a public meeting in the vicinity of the river or river segment proposed for addition to the State Scenic Rivers Program. This public meeting must be conducted before any action by the department to designate the river or river segment as an eligible state scenic river. The purpose of this meeting is to solicit comments from the public concerning the proposed designation of a river or river segment. Notice of this meeting must be published at least thirty days before the meeting in the State Register and in a newspaper having general circulation in each county containing or bordering the river or river segment under study and in a newspaper having general circulation in the State. Landowners along the proposed river or river segment also must be notified by letter.
Section 49-29-70. The department shall establish and publish minimum criteria for assessing a river's eligibility and classification under the State Scenic Rivers Program. To qualify as eligible, the river or river segment must possess unique or outstanding scenic, recreational, geological, botanical, fish, wildlife, historic or cultural values. The level of pollution of a river's waters must be considered in determining eligibility for qualification as a scenic river. A river with relatively polluted waters may qualify as eligible as a scenic river if other values are considered outstanding. The river or river segment must be managed permanently for the preservation or enhancement of its values.
Section 49-29-80. After eligibility procedures for a river or river segment are completed by the department, and the General Assembly ratifies such designation, the department, through the executive director, shall establish an advisory council for that scenic river. The advisory council must be appointed as early as possible to assist the work of the department. Each advisory council must consist of not less than six nor more than ten members who must be selected from local government, riparian landowners, community interests, and the department, whose staff member must serve as chairman. The riparian landowners must constitute a majority of the membership on each council. The duties of the advisory councils are to assist and advise the department concerning protection and management of each scenic river.
Section 49-29-90. No river or river segment may be eligible as a state scenic river and accorded the protection of this chapter, except upon formal action by the department. Following action by the department declaring a river or river segment eligible as a state scenic river, the department shall publish a notice of the eligibility in the State Register and provide written notice to the State Budget and Control Board, the Department of Revenue and Taxation, and the affected units of local government. Notice of eligibility also must be published in a newspaper of general circulation in the State to apprise interested parties of the opportunities under Section 49-29-100. The notice must describe the boundaries of the river or river segment. Following notice of eligibility, the department shall submit the same to the General Assembly for review. No river or river segment may be designated a state scenic river until the General Assembly has duly enacted legislation ratifying such designation.
Section 49-29-100. After ratification by the General Assembly of the designation of a river or river segment as a scenic river under the State Scenic Rivers Program, the State, through the Budget and Control Board, and with the consent of the governing body of the county in which the land is located, may purchase with donated or appropriated funds, exchange lands for, or otherwise accept donations of certain lands adjacent to the eligible river or section of a river either in fee simple or perpetual easement from an owner. Unless unusual circumstances warrant, purchases of land adjacent to scenic and recreational rivers may not be less than one hundred feet in width from the ordinary highwater mark or mean highwater line of the river in normal conditions. Purchases of land for natural rivers may not be less than three hundred feet in width from the ordinary highwater mark or mean highwater line of the river.
For landowners donating perpetual easements to the State under the Scenic Rivers Program, a deduction from state income tax may be taken equal to the fair market value of the easement granted. The value of a perpetual easement is determined as the difference between the fair market value of the total property before the land is burdened with the easement and the fair market value of the property after the easement is granted. After the grant of a perpetual easement, land subject to a permanent easement is exempt from all property taxes. Donors of land in fee simple may elect to take a deduction from state income tax equal to the value of the fee donated. For both donations in fee simple or easement, the donor may elect to take the deduction during a five-year period following the donation. The total deduction may be taken during any one year of the five-year period or the deduction may be taken in proportionate amounts during the five-year period. The value of the fee or easement must be assessed at the time of the donation.
Land placed in the Scenic Rivers Program which is owned by the State may be restricted in conformance with this chapter by executed easement or deed restriction executed by the donating agency and approved by the Budget and Control Board.
The Budget and Control Board shall submit annually a report of the property included in the Scenic Rivers Program to the Department of Revenue and Taxation and the auditor of each county in which the property is situated.
The limitations of the liability of titleholders, as provided under Section 29-3-50, apply to all land purchased or donated in easement under the Scenic Rivers Program.
Section 49-29-110. There is created the Scenic Rivers Trust Fund which must be kept separate from other funds of the State. The fund must be administered by the department for the purpose of acquiring fee simple or lesser interest in land adjacent to scenic rivers and river segments, legal fees, appraisals, surveys, or other costs involved in the acquisition of those interests.
Unexpended balances, including interest derived from the fund, must be carried forward each year and used for the purposes provided in this chapter.
No fund money may be expended to acquire an interest in land by eminent domain nor may the funds be expended to acquire interest in land without a recommendation from the board and the approval of the Budget and Control Board.
The board shall report by letter to the presiding officers of the General Assembly and chairmen of the House and Senate Agriculture and Natural Resources Committees each year all funds expended pursuant to this chapter for the previous year, including the amount of funds expended and the uses to which the expenditures were applied.
The fund is eligible to receive appropriations of state general funds, federal funds, donations, gifts, bond issue receipts, securities, and other monetary instruments of value. A reimbursement for monies expended from this fund must be deposited in this fund. A fund received through sale, exchange, or otherwise of land acquired under this chapter accrues to the fund.
Section 49-29-120. The lands to be placed in the Scenic Rivers Program may be obtained only from private or corporate owners voluntarily in the manner specified in Section 49-29-100. Neither the State nor an agency or department of it may obtain by eminent domain land for the Scenic Rivers Program either in fee simple or in perpetual easement.
Section 49-29-130. Whenever land or a portion of it donated pursuant to this chapter ceases to be used for the purpose for which it was donated, the title to the land reverts to the donor.
Section 49-29-140. Management of scenic river areas may differ in degree within a given class of rivers based on the special attributes of the river but must adhere to the following management policies:
(1) Natural rivers must be managed in a manner which:
(a) would best maintain and enhance those conditions which are attributed to wilderness type areas;
(b) would allow camping and river access only at designated public access areas; and
(c) would allow certain public uses only within prescribed public access areas.
(2) Scenic rivers must be managed in a manner which best maintains and enhances the scenic values of the river and the adjacent land while at the same time preserving the right of riparian landowners to use the river for customary agricultural, silvicultural, or other similar purposes.
(3) Recreational rivers must be managed in a manner which would best maintain and enhance the scenic values of the river while at the same time preserving the right of riparian landowners to use the river for customary agricultural, silvicultural, residential, recreational, commercial, and industrial purposes. To the extent practicable and consistent with the objectives of this chapter to preserve and maintain scenic rivers, public access and use must be open in all classes of scenic rivers. The level and nature of public use must not interfere with the rights retained by the titleholders or detract from the natural scenic qualities of the land, but the State may purchase lands or accept donations of easements, in accordance with Section 49-29-100, which restricts public access and use when necessary to implement this chapter.
Section 49-29-150. The provisions of this chapter regarding restrictive use or zoning of lands apply only to those lands which have been accepted into the State Scenic Rivers Program by donation, perpetual easement, or purchase.
Section 49-29-160. The department shall formulate comprehensive water and related land use plans for the three classes of scenic rivers. Each plan must address access of electricity, natural gas, and communication lines or other facilities for permitted uses for each class of river facilities. Each plan must also address criteria for permitting the crossing of each class of scenic river by sellers of electric energy, natural gas, or communication services. In developing these criteria, the department must consider the state of available technology, the economics of the various alternatives, and that electric, natural gas, and communication suppliers are required to deliver their services. The department must recognize that emergency situations will arise that require immediate action and must make provision in the management plan to allow this action.
In the comprehensive plan for the river classes, the following general land and water use practices are permitted or prohibited depending on the class:
(1) In natural river areas, no new roads or buildings may be constructed and there may be no mining and no commercial timber harvesting.
(2) In scenic and recreational river areas, the continuation of present agricultural practices such as grazing and the propagation of crops, including timber, is permitted. The construction of farm-use buildings is permitted if it is found to be compatible with the maintenance of scenic qualities of the stream and its banks. There may be no construction of roads paralleling the river within the limits of a scenic easement or public access area. The harvesting of timber is permitted provided the landowner follows the best management practices for forested wetlands as approved by the South Carolina Forestry Commission. Mining activities are permitted pursuant to a mining permit issued under the provisions of Chapter 19 of the `South Carolina Mining Act'. Construction for public access related to recreational use of these scenic river areas is allowed in accordance with Section 49-29-140.
Section 49-29-170. Sellers of electric energy, natural gas, or communication services may cross on, over, or under lands designated as part of the Scenic River System provided that the department certifies that such crossing is consistent with the management plan for those lands. A certificate of consistency shall be issued by the department upon a finding:
(1) that the crossing is necessary to provide electric, natural gas, or communication service; and either
(a) that the crossing is consistent with the management plan; or
(b) that the extent of deviation from the management plan for the construction, operation, and maintenance of the facility across the scenic river is justified, considering the state of available technology and the nature and economics of the various alternatives, and that the entity responsible for the encroachment will make reasonable mitigation for the impacts caused by the construction, operation, and maintenance of the facility. The department shall issue a certification of consistency or nonconsistency within thirty days from the receipt of an application. A time extension may be granted upon a mutual agreement of both parties. Certification does not preclude the necessity to obtain other required state and federal authorizations. All administrative proceedings are subject to Article I, Chapter 23 of Title 1 (the Administrative Procedures Act), as amended.
Section 49-29-180. The department shall administer the provisions of this chapter. The department may promulgate regulations to carry out the provisions of this chapter. In addition to general regulations, the department may promulgate further regulations based on the individual attributes of each designated scenic river area if regulations do not defeat, conflict with, or minimize the provisions of the general regulations for each class of scenic river. No scenic river may be managed in a manner that would result in the river corridor falling into a less restrictive class. Nothing in this chapter or its implementation may restrict reasonable utilization of the rivers in the program for fishing from the banks of the rivers or river segments.
Section 49-29-190. The department may enter into agreements with local, state, and federal agencies, and private landowners, for the mutual management of a scenic river. An agency which has administrative jurisdiction over lands or interests in land along a state scenic river must assist the department to implement the policies and practices of this chapter.
Section 49-29-200. The Natural Resources Enforcement Division of the Department of Natural Resources and the State Forestry Commission, as well as local sheriffs, constables, and special officers, shall cooperate in the inspection and enforcement of the provisions of this chapter.
Section 49-29-210. A person who violates a provision of this chapter, the regulations promulgated by the management agency under it, or the conditions of the perpetual easements granted to the State under this chapter is guilty of a misdemeanor and may be compelled to comply with or obey the provisions of this chapter by injunction or other appropriate remedy and, upon conviction, must be punished by a fine of not more than five hundred dollars or imprisonment for not more than thirty days for each day of a violation. The provisions of this section do not preclude any applicable action by the Department of Revenue and Taxation to remove or recover property or income tax due it under Section 49-29-100.
Section 49-29-220. To the extent practicable and consistent with the objectives of this chapter to preserve and maintain scenic rivers, camping activities are encouraged to be included in the comprehensive management plans of all classes of scenic rivers when that activity does not interfere with the rights retained by the titleholders or detract from the natural scenic qualities of the land.
Section 49-29-230. The following are designated as scenic rivers:
(1) that portion of the Little Pee Dee River located between the Highway 378 bridge crossing of the Little Pee Dee River and the confluence of the river with the Great Pee Dee River;
(2) that portion of the Broad River located between the 99 Islands Dam and the confluence with the Pacolet River;
(3) that portion of the Saluda River located between the old railroad abutments located three thousand feet below the Saluda Hydroelectric Plant and the confluence with the Broad River."
Names revised
SECTION 1257. Chapter 1, Title 50 of the 1976 Code is amended to read:
"CHAPTER 1
General Provisions
Section 50-1-5. For the purposes of Title 50, unless the context clearly indicates otherwise,:
(1) `Board' means the governing body of the department.
(2) `Department' means the South Carolina Department of Natural Resources.
(3) `Director' means the administrative head of the department, appointed by the board.
(4) `Enforcement officer' means an enforcement officer of the Natural Resources Enforcement Division of the department.
Section 50-1-10. All wild birds, wild game, and fish, except fish in strictly private ponds and lakes and lakes entirely segregated from other waters or held and grown in bonafide aquaculture operations are the property of the State.
Section 50-1-20. The word `hunters' in the game laws of this State providing punishment shall not be construed so as to include persons who, without guns, assist others with dogs and horses or in the finding or retrieving of birds nor shall any such activity be deemed to constitute `hunting' within the meaning of such laws.
Section 50-1-30. For the purpose of Chapters 1 through 19 of this title the following classifications shall be recognized:
(1) Game birds.--morning dove, bob white quail, ruffed grouse, wild turkey, Wilson snipe, woodcock, the Anatidae (commonly known as goose, brant, and duck), and the Rallidae (commonly known as marsh hen, coot, gallinule, and rail).
(2) English sparrow, pigeon, and starling. These birds are unprotected by South Carolina law.
(3) Nongame birds.--All native birds not named in items (1) and (2) of this section are nongame birds and shall not be destroyed in any manner at any time, except as otherwise provided by law.
(4) `Game animals'. Beaver, black bear, bobcat, white-tailed deer, fox, mink, muskrat, opossum, otter, rabbit, raccoon, skunk, squirrel, and weasel.
(5) Game fish. Bream: bluegill, redear or shellcracker or government bream, copperface or bald bream, redbreast, pumpkinseed or redeye bream, green sunfish, longear sunfish, orangespotted sunfish, stumpknocker, warmouth or flyer; blackbass; largemouth bass, smallmouth bass or coosae bass; striped bass or rockfish; white bass; hybrid striped bass-white bass; crappie; walleye or sauger; jackfish, pickerel or redfin trout; rainbow, brown or brook trout; yellow perch and Virginia or white perch (Morone Americana).
Section 50-1-40. All species of the pheasants and the francolins that have been stocked or may be released by the department are hereby classified as game birds in this State, along with any other game bird species that the department may select for release in this State; provided, that any such species that may not adapt itself to environmental conditions in this State after extensive trial may be removed from the game bird list.
Section 50-1-60. The State is divided for the purpose of game into eleven zones:
(1) The first zone shall comprise the counties of Greenville, Oconee and Pickens;
(2) The second zone shall comprise the counties of Abbeville, Anderson, Edgefield, Greenwood, Laurens, McCormick, Newberry and Saluda;
(3) The third zone shall comprise the counties of Aiken, Calhoun, Lexington and Richland;
(4) The fourth zone shall comprise the counties of Cherokee, Chester, Fairfield, Lancaster, Spartanburg, Union and York;
(5) The fifth zone shall comprise the counties of Chesterfield, Kershaw and Marlboro;
(6) The sixth zone shall comprise the counties of Berkeley, Charleston, Dorchester and Orangeburg;
(7) The seventh zone shall comprise the counties of Dillon and Horry;
(8) The eighth zone shall comprise the counties of Darlington, Lee and Sumter;
(9) The ninth zone shall comprise the counties of Clarendon, Georgetown and Williamsburg;
(10) The tenth zone shall comprise the counties of Florence and Marion;
(11) The eleventh zone shall comprise the counties of Allendale, Barnwell, Bamberg, Beaufort, Colleton, Hampton and Jasper.
Section 50-1-70. All laws of this State in force on April 24, 1952, affecting game shall, until changed, apply to all of the zones of the State, and all laws of the State thereafter enacted shall apply to the entire State except where otherwise specified.
Section 50-1-80. It shall be the positive duty of all sheriffs, deputy sheriffs, constables, rural policemen and special officers to actively cooperate with the department in the enforcement of the game and fish laws of the State.
Section 50-1-85. It is unlawful for any person to use a firearm or archery tackle while in preparation for, engaged in the act of, or returning from hunting in a criminally negligent manner. Criminal negligence is defined as the reckless disregard for the safety of others.
A person violating the provisions of this section is guilty of a misdemeanor and, upon conviction, must be:
(1) in a case where no personal injury or property damage occurs, fined not more than two hundred dollars or imprisoned for not more than thirty days;
(2) in the case of property damage only, fined not more than one thousand dollars nor less than five hundred dollars or imprisoned for not more than six months, and the court must order restitution to the owner of the property;
(3) in the case of bodily injury to another, fined not less than five hundred dollars nor more than two thousand, five hundred dollars or imprisoned for not more than two years; if the bodily injury results in disfigurement, total or partial permanent disability, be imprisoned for not less than sixty days nor more than two years;
(4) in the case of death, be imprisoned for not less than three months nor more than three years.
No part of the minimum fines and penalties provided in this section may be suspended by any court in this State.
In addition to the criminal penalties provided above, the department must seize immediately the license of a person charged under this section and, upon conviction, the hunting privileges of a person convicted under item (1) or (2) above must be suspended for one year. A person convicted under item (3) of this section shall lose his privilege to hunt for three years, and a person convicted under item (4) of this section shall lose the privilege of hunting for five years.
A person convicted of hunting while his license is suspended under the provisions of this section must be fined not less than five hundred dollars nor more than two thousand, five hundred dollars or imprisoned for not more than two years and shall have his hunting privileges suspended for an additional five years.
The person may not obtain another hunting license until he has completed satisfactorily a hunter's safety program conducted by the department.
All monetary penalties shall be remitted to the South Carolina Victim's Compensation Fund.
Section 50-1-90. If any person, at any time whatsoever, shall hunt or range on any lands or shall enter thereon, for the purpose of hunting, fishing or trapping, without the consent of the owner or manager thereof, such person shall be guilty of a misdemeanor and, upon conviction thereof shall, for a first offense, be fined not more than two hundred dollars or imprisoned for not more than thirty days, for a second offense, be fined not less than one hundred dollars nor more than two hundred dollars or imprisoned for not more than thirty days and, for a third or subsequent offense, be fined not less than five hundred dollars nor more than one thousand dollars or imprisoned for not more than six months or both. A first or second offense prosecution resulting in a conviction shall be reported by the magistrate or city recorder hearing the case to the communications and records division of the South Carolina Law Enforcement Division which shall keep a record of such conviction so that any law enforcement agency may inquire into whether or not a defendant has a prior record. Only those offenses which occurred within a period of ten years, including and immediately preceding the date of the last offense, shall constitute prior offenses within the meaning of this section.
Section 50-1-95. Any person involved in a hunting accident in which injury or death resulted must within thirty days from the date of the accident file with the department a report on forms provided by the department containing a full description of the accident and any other information required by the department. Any such report is without prejudice, is for the information of the department and may not be open to public inspection. The report must be made available upon written request to any person injured or damaged in the accident or to his attorney. The fact that the report has been made is admissible in evidence solely to show compliance with this section but no such report nor any part thereof nor any statement contained therein is admissible as evidence for any purpose in any civil trial.
The department shall administer the State Hunting Casualty Reporting System.
Any person failing to file the report required by this section is guilty of a misdemeanor and, upon conviction, shall be fined not more than one hundred dollars or imprisoned for not more than thirty days.
Section 50-1-100. It shall be unlawful to fish or hunt from the banks of a navigable stream without the permission of the owner of the land, and such permit must be in writing should the owner not be within one mile of the place where the person may be caught in the act of so fishing or hunting.
Section 50-1-110. Wildlife unlawfully taken, shipped, or received for shipment, or found in the possession or under control of a person, which comes into the possession of the department and wildlife legally taken which comes into possession of the department may be disposed of in the discretion of the department. No wildlife coming into the possession of the department may be transferred to or used by a department employee or member of his family for personal use.
Section 50-1-120. It shall be unlawful for anyone to catch, kill, possess or transport, or to attempt to catch, kill, possess or transport any alligator, bird or animal or part thereof, in violation of any of the provisions of the fish and game laws.
Section 50-1-125. Wildlife, as used in this section, means a wild animal, bird, reptile, amphibian, fish, mollusk, crustacean, or other wild animal, or product, egg, offspring, or the dead body parts of the wildlife.
A person illegally buying, selling, trading, trafficking, or bartering any wildlife, upon conviction, must be punished as follows:
(1) For the first offense, if the money or other consideration exchanged for the wildlife is of a value of two hundred dollars or less, the penalty must be a fine of not more than two hundred dollars or imprisonment for no more than thirty days.
(2) For the first offense, if the money or other consideration exchanged for the wildlife is of a value of more than two hundred dollars, the penalty must be a fine of not less than five hundred dollars nor more than five thousand dollars or imprisonment for not less than thirty days nor more than one year, or both. In addition, the person convicted shall lose his hunting and fishing privileges for one year from the date of conviction.
(3) For a second offense, within three years of the first offense, the fine must be not less than one thousand dollars nor more than five thousand dollars or imprisonment for not less than thirty days nor more than one year. In addition to this penalty, the person shall lose his hunting and fishing privileges for three years.
(4) For a third or subsequent offense, within three years of the last previous conviction, the fine must be five thousand dollars, no part of which may be suspended, or imprisonment for one year, or both. In addition to this penalty, the person shall lose his hunting and fishing privileges for three years from the date of conviction.
Section 50-1-130. Unless a different penalty is specified, any person who violates a provision of this title is guilty of a misdemeanor and, upon conviction, must be fined not less than twenty-five dollars nor more than two hundred dollars or imprisoned for not less than ten days nor more than thirty days.
Section 50-1-135. The entry of any plea of guilty, the forfeiture of any bail posted, or the entry of plea of nolo contendere for a violation of the fish and game laws of this State has the same effect as a conviction. In any case where bail is posted by the defendant, no forfeiture of bail becomes effective until ten days following the date of arrest nor may the defendant be required to plead prior to the elapse of the ten-day period. The provisions of this section may not be construed to prohibit a defendant from voluntarily entering a plea or forfeiting bail within the ten-day period.
Section 50-1-136. Notwithstanding the provisions of Section 16-17-410 and any other provisions of law, every person who conspires to violate any provisions of the game and fish laws of this State or any other provision of Title 50, except the provisions of the Federal Migratory Bird Treaty Act or regulations promulgated by authority of that act, is guilty of a misdemeanor and upon conviction is subject to a penalty not greater than that provided by law for the violation. Every person who conspires to violate two or more provisions of the game and fish laws of this State or any other provision of Title 50, except the provisions of the Federal Migratory Bird Treaty Act or regulations promulgated by authority of that act, is guilty of a misdemeanor and upon conviction must be fined not more than two thousand dollars or imprisoned for not more than one year, or both. In addition to the criminal penalty, any person convicted of such conspiracy shall have his privilege to hunt or fish either recreationally or commercially revoked for one year.
Section 50-1-137. It is unlawful for a person wilfully to impede or obstruct another person from lawfully hunting, trapping, fishing, or harvesting marine species. Any person violating the provisions of this section is guilty of a misdemeanor and, upon conviction, must be punished as provided by Section 50-1-130. In addition to the criminal penalty, any person convicted must have his privilege to hunt, trap, fish, or harvest marine species recreationally or commercially revoked for one year.
Section 50-1-140. It shall be unlawful for any enforcement officer or any person to receive any portion of a fine imposed by any court for the violation of the game and fish laws of the State.
Section 50-1-150. Revenues from all fines and forfeitures of any game, nongame or fish law shall, except as otherwise provided in Chapters 1 through 19 of this title, be transmitted to the county treasurer of the county where the revenues were collected, who shall then transmit them, less any amount to be paid to the Law Enforcement Training Council Division of the Department of Public Safety , to the department and such revenues shall be placed to the credit of the game protection fund of the State Treasury and be expended for fish and game propagation in the counties where they are collected. The remittances shall be accompanied by a statement showing the name of all persons fined, the amount of each fine, the summons number and the court in which each fine was collected. All license fees prescribed by any game, nongame or fish law, except as otherwise provided in Chapters 1 through 19 of this title, shall be collected by the department and placed to the credit of the game protection fund of the State Treasury. All balances in these funds shall be carried forward each year so that no part shall revert to the general fund of the State.
Section 50-1-160. One dollar of each nonresident hunter's license fee collected and fifty cents of each temporary nonresident hunter's license fee collected shall be used by the department for propagation, management and control of ducks and geese in this State and a like portion of such license fees shall be contributed by the department to proper agencies in Canada for propagation, management and control of ducks and geese.
Section 50-1-170. In Beaufort County all fines collected as a result of violations of the commercial fish and game laws, when the violators are prosecuted by the sheriff's office, shall be retained by the county. The fines collected shall be turned over to the treasurer of the county and set aside in a special fund to be used by the sheriff's office for the maintenance of equipment and supplies.
Section 50-1-180. The consent of the General Assembly is hereby given to the making by the Congress of the United States, or under its authority, of all such rules and regulations as the Federal Government shall determine to be needful in respect to game animals, game birds and nongame birds and fish on such lands in this State as shall have been, or may hereafter be, purchased by the United States under the terms of the act of Congress of March 1, 1911, entitled `An Act to Enable any State to Cooperate with any other State or States, or with the United States for the Protection of the Watersheds of Navigable Streams and to Appoint a Commission for the Acquisition of Lands for the Purpose of Conserving the Navigability of Navigable Rivers' (36 United States Statutes at large, page 961) and acts of Congress supplementary thereto and amendatory thereof.
Section 50-1-190. The department may enter into a cooperative agreement with the United States Government, or with the proper authorities thereof, for the protection and management of the wildlife resources of the national forest lands within the State and for the restocking of such lands with desirable species of game, birds and other animals and fish.
Section 50-1-200. The department may close all hunting and fishing within such lands so contracted for with the Federal Government for such period of time as may, in the opinion of the department, be necessary. The department may from time to time prescribe the season for hunting and fishing therein, fix the amount of fees required for special hunting and fishing licenses and issue such licenses, prescribe the number of animals and game, fish and birds that may be taken therefrom and the size thereof and prescribe the conditions under which they may be taken.
Section 50-1-210. Any person violating any of the regulations promulgated by the department or who hunts or fishes upon the lands at any time, other than those times specified by the department, must, upon conviction of the violations, be fined not more than two hundred dollars or imprisoned for not more than thirty days for each and every offense.
Section 50-1-220. The provisions of Sections 50-1-180 to 50-1-230 shall also apply to (a) other properties of the United States Government, (b) any other properties acquired or to be acquired from the United States Government by the State or (c) any other lands or waters purchased by the United States or the State. But hunting and fishing shall not be allowed on any lands under the control or ownership of the State Commission of Forestry except by written agreement with that Commission. Nothing contained in such sections shall interfere in any manner with the use and management of lands by a state agency in charge of such lands in the functions of such agency as authorized by law.
Section 50-1-230. All money collected by the department on the Santee-Cooper area under the provisions of an agreement between the United States Fish and Wildlife Service and the department in accordance with Sections 50-1-190 and 50-1-220, or collected under any act of the General Assembly pertaining to such area, shall be placed by the department with the State Treasurer and placed to the credit of the Santee-Cooper project to be disbursed by the department solely for game and fish protection and propagation on the Santee-Cooper lands and waters or as provided by such act.
Section 50-1-240. The State hereby assents to the provisions of the act of Congress entitled `An Act to Provide that the United States Shall Aid the States in Wildlife Restoration Projects, and for Other Purposes,' approved September 2, 1937 (Public Law No. 415, 75th Congress), and acts supplementary thereto or amendatory thereof, and the department shall perform such acts as may be necessary to the conduct and establishment of cooperative wildlife restoration projects, as defined in such act of Congress, in compliance with such act and with rules and regulations promulgated by the Secretary of Agriculture thereunder.
Section 50-1-250. The department may contract with owners of land contiguous to the Catawba River and its tributaries for rights of ingress and egress to such waters over and upon such lands for the use of the public who wish to go lawfully upon said stream and waters. Such rights of way shall be leased for such terms as the landowners and the department shall agree upon and compensation for them, if need be, may be paid from the game fund of York County. The purpose of this provision is to make sure that the public have reasonable access to the waters above referred to.
Section 50-1-260. It is unlawful to vandalize, tamper with, or enter on or into watercraft, vehicles, devices, or pieces of equipment seized and held as required or permitted by law by the department. Any person violating the provisions of this section is guilty of a misdemeanor and, upon conviction, must be fined not more than one thousand dollars or imprisoned for not more than thirty days. Magistrates have jurisdiction of violations of this section. The department shall attach a notice to each unit of impounded property stating the prohibition and the penalties for violations.
Section 50-1-270. (A) A person or public or private entity is liable to the State for the unlawful gross destruction of or injury to wildlife, aquatic life, endangered or threatened species, or the lands or waters owned by the State. For a deliberate or grossly negligent act, the State must be awarded damages of three times the value of the resource affected, plus costs, including attorney's fees. Monies paid in satisfaction of these claims must be used to restore, replenish, or enhance wildlife, aquatic life, endangered or threatened species, or the lands or waters owned by the State. For purposes of this section, the injury or damages must be caused by other than pollution.
(B) The department is the agency primarily responsible for the enforcement and implementation of this section. Other state agencies and governmental entities shall cooperate with the department in an effort to investigate the causes of the destruction or injury and shall assist in collecting the appropriate damages.
(C) This section does not apply to ordinary agricultural practices."
Board of the Department of Natural Resources and its duties created; commission and its duties deleted; divisions created; names revised; service of enforcement officers provided
SECTION 1258. Chapter 3, Title 50 of the 1976 Code is amended to read:
"CHAPTER 3
Wildlife and Marine Natural Resources Department
Article 1
Composition and Organization of Department
Section 50-3-10. The head and governing board of the former South Carolina Wildlife and Marine Resources Department as it was constituted before the effective date of this section shall become the board of the Department of Natural Resources until the terms of its current members expire and until their successors are appointed and qualify pursuant to the provisions of Chapter 2 of Title 48.
Section 50-3-80. The department shall continuously investigate the game and fish conditions of the State and the laws relating thereto. It shall annually make report of its activities to the General Assembly and recommend legislation and other action by the General Assembly in its judgment conducive to the conservation of wildlife.
Section 50-3-90. The authorized agents of the department may conduct game and fish cultural operations and scientific investigations in such manner, places and at such times as are considered necessary and may use whatever methods are deemed advisable for sampling fish populations. Such operations and investigations shall be conducted only at the request of and with the permission from the board, and no such operations and investigations shall be made upon private lands and waters except at the request of the owner or owners of such lands and waters.
Section 50-3-100. The department may acquire, own, sell, lease, exchange, transfer or rent real property, alone or in cooperation with agencies of the federal government, for the purpose of providing game reserves, fish ponds, game farms, fish hatcheries, public hunting and fishing grounds and for other purposes necessary and proper for the protection, managing or propagating of fish and game and furnishing the people of the State with hunting areas and fishing facilities. Only funds or revenues of the department not essential to its normal operation may be used for such purposes. Funds made available by appropriation, allotment or donation to the Department for such purposes by the federal government and its agencies or by other governmental or private agencies may be used to carry out the provisions of this section.
Section 50-3-110. The department shall have charge of the enforcement officers of the Natural Resources Enforcement Division of the department and exercise supervision over the enforcement of the laws of the State, regulatory, tax, license or otherwise, in reference to birds, nonmigratory fish, game fish, shellfish, shrimp, oysters, oyster leases and fisheries. The department may make contracts with enforcement officers, and the director may dismiss the enforcement officers at his discretion.
Section 50-3-120. Notwithstanding any other provision of law, all law-enforcement personnel of the department are hereby designated enforcement officers with all the power and authority now possessed by game wardens, conservation officers, and inspectors as provided for in Chapters 1 through 19 of this title.
Section 50-3-130. The board shall prescribe a unique and distinctive official uniform, with appropriate insignia to be worn by all uniformed enforcement officers of the Natural Resources Enforcement Division of the department when on duty and at such other times as the board shall order, and a distinctive color or colors and appropriate emblems for all motor vehicles used by such officers. No other law enforcement agency, private security agency or any person shall wear a similar uniform and insignia which may be confused with the uniform and insignia of the enforcement officers nor shall any emblem be used on a motor vehicle nor shall it be painted in a color or in any manner which would cause the vehicle to be similar to an enforcement officer's vehicle or readily confused therewith.
Section 50-3-140. The department shall file with the Secretary of State and Legislative Council for publication in the State Register a description and illustration of the uniform and emblems of the official enforcement officers' uniforms and motor vehicles and a description of the color of such uniforms and vehicles.
Section 50-3-150. In order to carry out the provisions of Sections 50-3-120 to 50-3-160 in an orderly and economical manner it is intended that all serviceable uniforms be continued in use until such time as the board deems it necessary for them to be replaced. These provisions shall also apply to the emblems for motor vehicles.
Section 50-3-160. Any violation of Sections 50-3-130 to 50-3-160 may be enjoined by the court of common pleas upon petition of the department after due notice to the person violating the provisions of Sections 50-3-130 to 50-3-160 and after a hearing on the petition.
Section 50-3-170. The board shall file a quarterly report to each member of the General Assembly explaining the status of each county fish and game fund and watercraft fund, to include total funds for each county and an itemized list of expenditures for the past quarter.
Article 3
Conservation Officers
Natural Resources Enforcement Division
Section 50-3-310. The director shall appoint the enforcement officers of the Natural Resources Enforcement Division, subject to their receiving a commission from the Governor. An enforcement officer shall be issued a commission by the Governor upon the recommendation of the director. An enforcement officer may be removed by the board upon proof satisfactory to it that he is not fit for the position.
Section 50-3-315. (A) The director may appoint deputy enforcement officers to serve without pay and shall establish their territorial jurisdiction. The officers, when acting in their official capacity, may enforce all laws and regulations relating to wildlife, marine, or natural resources within their territorial jurisdiction. The powers and duties of the officers must be established by regulations of the department. Deputy enforcement officers serve at the pleasure of the director. The Secretary of State shall transmit to the director the commissions of all officers. The director shall transmit each commission to the office of the clerk of court for the county in which the officer resides only after he files the oaths and bonds required by Section 50-3-330.
(B) Deputy enforcement officers commissioned by the director are volunteers covered by Chapter 25 of Title 8 and not employees entitled to coverage or benefits in Title 42.
(C) Every two years the department shall conduct a criminal records check on each deputy enforcement officer.
Section 50-3-316. The department shall, in employing enforcement officers, use the criteria as required by the Division of Human Resource Management and the department, which shall include but is not limited to, a written examination, physical examination, and interview. Each applicant shall be required to perform at minimal levels as required by the Division of Human Resource Management and the department.
The department, when employing enforcement officers within a particular county, must hire those applicants, if any, who meet the minimum employment qualification requirements as required by the Division of Human Resource Management and the department and who reside within that particular county before the department may hire other qualified applicants who reside outside that county.
If more than one vacancy exists in a county, the resident candidate with the next highest score will be chosen to fill the second vacancy. Additional vacancies would be filled in the same manner.
If there are no candidates for that county who meet the minimum requirements, the vacancy will be filled by the top scoring candidate regardless of county of residence.
Section 50-3-320. The Secretary of State shall transmit to the board the commissions of all enforcement officers and the director shall deliver such commissions to the enforcement officers only after the enforcement officers have filed oaths and bonds as required by Section 50-3-330.
Section 50-3-330. Every enforcement officer appointed to protect the property of the State shall, before entering upon the duties of his office, take and subscribe before a notary public, or other officer authorized to administer an oath, an oath to perform the duties of his office and shall execute a bond with some reliable surety company approved by the board in the sum of one thousand dollars for the faithful discharge of his duties. Such bond and oath shall be transmitted to the board, which shall properly record them and keep them on file in the office of the board.
Section 50-3-340. The enforcement officers, when acting in their official capacity, shall have statewide authority for the enforcement of all laws relating to wildlife, marine, and natural resources.
Section 50-3-350. The enforcement officers, when acting in their official capacity, shall wear a metallic shield with the words `Enforcement Officer of the Natural Resources Enforcement Division' inscribed thereon.
Section 50-3-360. A majority of the legislative delegation, together with the Senator, from any county in Game Zone No. 2 shall have the privilege in their discretion of authorizing the employment of additional deputy enforcement officers for not more than three months during the hunting season and compensation of such enforcement officers shall be made from game fund on hand.
Section 50-3-370. All enforcement officers shall obtain information as to all violations of the bird, nonmigratory fish, and game laws, and check all bag limits, size and specie of such birds, nonmigratory fish and game.
Section 50-3-380. A duly commissioned enforcement officer, upon making an affidavit before a magistrate or in any court of the State that there exist reasonable grounds to believe that birds, fish or game are in the possession of any person or any common carrier in violation of the law, may procure a search warrant and open and enter and examine all cars, warehouses and receptacles of common carriers in the State where he has reason to believe any game or fish taken or held in violation of law is and, when any such game or fish are found, may seize them.
Section 50-3-390. The enforcement officers shall see that the bird, nonmigratory fish and game laws are enforced and prosecute all persons having in their possession any birds, nonmigratory fish or game contrary to the bird, fish and game laws of this State.
Section 50-3-395. Enforcement officers may issue warning tickets to violators in cases of misdemeanor violations under this title. The department shall by regulation provide for the form, administration, and use of warning tickets authorized by this section.
Section 50-3-396. The official summons used by enforcement officers may be used to cite violators of the provisions of Section 16-11-700 relating to littering.
Section 50-3-400. The enforcement officer qualified under Sections 50-3-320 and 50-3-330 shall possess and exercise all of the power and authorities held and exercised by the constable at common law and under the statutes of this State. He shall also have the authority of inspector as provided for in Chapter 5 of this title.
Section 50-3-410. When a person is apprehended by an enforcement officer upon a charge of violating any provision of this title or littering or trespass prohibition statutes or regulations posted by the Department of Parks, Recreation and Tourism regarding the use of lakes, ponds, and other waters located wholly within state parks, the person charged, upon being served with an official summons, may deposit with the apprehending enforcement officer money as bail, not less than the minimum nor more than the maximum fine, not to exceed two hundred dollars, in lieu of a recognizance for his appearance for trial or being incarcerated. A receipt for the sum deposited must be given to the person by the enforcement officer. The summons gives the court jurisdiction to dispose of the matter. Upon receipt of the bail money, the enforcement officer may release the person to appear before the proper judicial officer at a time stated in the summons.
Section 50-3-420. Neither any officer of the Lake Wylie Marine Commission nor any enforcement officer in the State is subject to criminal prosecution when acting in his official capacity within his territorial jurisdiction for:
(1) failing to comply with statutes or regulations governing the operations of motor vehicles, watercraft, or aircraft;
(2) entering into private property, whether or not posted against trespassing;
(3) failure to comply with wildlife conservation and boating laws of this State as a necessary part of the investigation or enforcement effort in enforcing those laws.
The provisions of this section do not relieve the officers from the duty to exercise due regard for the safety of the public or protect them from the consequences of reckless, wilful, or wanton disregard for the safety of others nor liability for criminal prosecutions except as stated in items (1), (2), and (3).
Article 5
Cutting of Timber on Lands Held by Department
Section 50-3-510. The department may, subject to the provisions of this article contract for the selective cutting and sale of timber on any lands held by the department on behalf of its Wildlife and Freshwater Fish Division. No contract for such cutting and sale shall be entered into and no timber shall be cut or sold unless the board decides that the cutting and sale of such timber is for the best interests of the department and the improvement of its lands, by reason of thinning the timber, harvesting the over-age trees and improving general forestry conditions. Prior to selling or cutting any such timber the matter shall be submitted to the State Forester, who shall investigate the propriety of making such cutting and shall have the timber cruised and an estimate of the value made. If the State Forester finds that the sale is not in keeping with good forestry practices or will adversely affect the remainder of the timber, the sale shall not be made.
Section 50-3-520. If the sale is approved by the State Forester, the department shall publicly advertise for bids for such timber in at least two newspapers of general circulation in the area in which the timber is located, such advertisements to be published at least once a week for three weeks prior to the closing of the bidding. The board shall have the right to reject any and all bids, either on account of the amounts of the bids or the lack of experience and responsibility of the bidder. Any sale agreed upon shall be for cash.
Section 50-3-530. Any deeds or contracts required in carrying out the provisions of this article may, by resolution of the board, be executed and delivered on its behalf by its chairman and by the director.
Section 50-3-540. The State Forester shall have all trees to be cut properly marked prior to the commencement of the cutting.
Section 50-3-550. The proceeds of the sale must be deposited with the Treasurer to the credit of the game protection fund.
Article 7
Wildlife Endowment Fund
Section 50-3-710. There is created the South Carolina Wildlife Endowment Fund, the income and principal of which must be used only for the purpose of supporting wildlife conservation programs of the State.
Section 50-3-720. There is created the Board of Trustees of the Wildlife Endowment Fund of the Department of Natural Resources, with full authority over the administration of the fund, whose chairman and members are the chairman and members of the board of the Department of Natural Resources. The State Treasurer is the custodian of the fund and shall invest its assets in accordance with the provisions of Title 11.
Section 50-3-730. The assets of the fund are derived from:
(1) the proceeds of any gifts, grants, and contributions to the State which are designated specifically for inclusion;
(2) the proceeds from the sale of lifetime combination licenses issued in accordance with Section 50-9-11;
(3) the proceeds from the sale of lifetime hunting and lifetime fishing licenses in accordance with Sections 50-9-120(3) and 50-9-455;
(4) any amount in excess of the statutory fee for a particular lifetime license which qualifies as a tax-exempt donation to the State;
(5) other sources specified by law.
Section 50-3-740. The fund constitutes a special trust derived from a contractual relationship between the State and the members of the public whose investments contribute to the fund. In recognition of the special trust, the following limitations and restrictions are placed on expenditures from the fund:
(1) Any limitations or restrictions specified by the donors on the uses of the income derived from the gifts, grants, and voluntary contributions are respected but are not binding.
(2) No expenditure or disbursement may be made from the principal of the fund except as otherwise provided by law.
(3) The income received and accruing from the investments of the fund must be spent only in furthering the conservation of wildlife resources and the efficient operation of the department in accomplishing the purposes of the department as set forth in this title.
Section 50-3-750. The board may accumulate the investment income of the fund and may direct expenditures from the income of the fund for the purposes set out in Section 50-3-740(3).
Section 50-3-760. Expenditure of the income derived from the fund must be made through the board in accordance with the provisions of the general appropriations act. The fund is subject to the oversight of the State Auditor.
Section 50-3-770. The fund and income do not take the place of state appropriations or department receipts placed in the fund, but any portion of the income of the fund available for the purpose set out in Section 50-3-740(3) must be used to supplement other income of and appropriations to the department.
Section 50-3-780. If the board of the Department of Natural Resources is dissolved, the succeeding agency shall assume the trusteeship of the fund and is bound by all the limitations and restrictions placed by this article on expenditures from the fund. No repeal or modification of this article or title alters the fundamental purposes to which the fund is applied. No future dissolution of the board of the Department of Natural Resources or substitute agency invalidates any lifetime license issued in accordance with Chapter 9 of this title.
Section 50-3-790. In the event the annual combination as provided in Section 50-9-10, annual hunt as provided in Section 50-9-120(1), or annual fish license as provided in Section 50-9-450 fee increases, the percentage of increase for each annual license shall be applied to the existing lifetime license fees and each lifetime license fee shall be increased accordingly, rounding the fee to the next highest dollar.
Section 50-3-800. A lifetime licensee shall not lose the privileges of such license by a subsequent transfer of residency."
Division changed to department; names revised; duties of enforcement officers provided
SECTION 1259. Chapter 5, Title 50 of the 1976 Code is amended to read:
"CHAPTER 5
Division of Commercial Fisheries
Section 50-5-10. As used in this chapter the words defined in Section 50-17-15 shall have the meanings there ascribed to them.
Section 50-5-20. The department shall have jurisdiction over all salt-water fish, fishing and fisheries, all fish, fishing and fisheries in all tidal waters of the State and all fish, fishing and fisheries in all waters of the State whereupon a tax or license is levied for use for commercial purposes. This includes the following: All shellfish, crustaceans, diamond-back terrapin, sea turtles, porpoises, shad, sturgeon, herring and all other migratory fish except rock fish (striped bass).
Section 50-5-30. The department shall impartially enforce all laws pertaining to fish and fisheries.
Section 50-5-40. The department shall enforce all laws for collection of revenues due the State from the fishing industries and leases of bottoms.
Proceeds from sales of experimental mariculture products produced at the James M. Waddell, Jr. Mariculture Research and Development Center shall be deposited in the State Treasury to the credit of the Mariculture Research and Development Fund, Marine Resources Division of the department, to further encourage and promote development of the mariculture industry of South Carolina by supporting operational research and development projects of the Research Center and transfer of information to the mariculture industry. Funds deposited in the Mariculture Research and Development Fund may be carried forward annually and used for the same purpose.
Section 50-5-50. The department may expend such sums as it may deem advisable in the experimental propagation of shellfish upon suitable bottoms and it shall report such experiments, the results thereof and its conclusions therefrom to the Governor and the General Assembly in its annual reports.
Section 50-5-60. The department shall purchase, equip and maintain six launches, one for Charleston County, one for Beaufort County, one for Georgetown County, one for Colleton County and the remaining two launches for the territory at large, and may provide for repairs to be made to launches, vessels, machinery and furniture as may be necessary to keep them in serviceable condition. It shall see that the launches and vessels and their appurtenances are at all times kept clean and otherwise in good serviceable condition and may sell or exchange any launch or vessel belonging to the police fleet and, in such case, reinvest the proceeds of such sale, or make further exchanges as may appear to be necessary and best for the interest of the State.
Section 50-5-70. The department may require enforcement officers to wear uniforms to be prescribed by the department and badges of their authority as arresting officers under the Coastal Fisheries Laws, Chapter 17 of this title.
Section 50-5-80. The enforcement officers appointed for the purpose of carrying out the provisions of and enforcing compliance with the Coastal Fisheries Laws, Chapter 17 of this title, shall devote their entire time to the service of the State in carrying out the provisions and enforcing compliance with the Coastal Fisheries Laws, Chapter 17 of this title, and to that end they may arrest all violators of such law without warrant when the violations are committed within their own knowledge and observation and take them without unnecessary delay before some officer authorized to issue arrest warrants and swear out warrants for their arrest and deliver them to an officer of the law under such warrants. They may also, upon warrants for violations of the Coastal Fisheries Laws sworn out by others, make arrest therefor.
Section 50-5-90. It shall be unlawful to remove, steal, intentionally damage or interfere with any fishing equipment or device belonging to another or to remove the catch of any fish, crustaceans or shellfish contained therein without the permission of the owner. Where otherwise not specifically provided by law, the theft or damage of fishing equipment belonging to another shall be punishable, upon conviction, by a fine of two hundred dollars or thirty days' imprisonment.
Section 50-5-100. It shall be lawful for the enforcement officers appointed for the purpose to enter any and all premises, vessels, boats, houses, sheds or warehouses used in fishing or any fishing industry in the tidewaters or coastal section of this State and to arrest, without warrant, all persons found actually violating the penal laws contained in the Coastal Fisheries Laws, Chapter 17 of this title.
Section 50-5-110. The department may adopt and promulgate rules and regulations for the government of the force under its control and for the control of fisheries, not contrary to or inconsistent with the laws and policy of the State, having the force and effect of law, and may provide penalties for violation thereof not to exceed forfeiture of license or privilege previously granted by the Division.
Section 50-5-120. The records and documents in the office of the department shall include:
(1) A record of leases granted for bottoms for the propagation of shellfish and the subsequent changes of ownership thereof;
(2) The particulars and amounts of all licenses and permits of every kind issued;
(3) A tabulated record of the quantity of each kind of fish taken in the waters of the State, the commercial value thereof, the amount exported and the amount consumed within the State;
(4) The number of persons engaged in the various branches of the fishing industries and their approximate earnings;
(5) Any other matter which to it may appear advisable.
Section 50-5-130. The department may prosecute for violations of all laws for the collection of revenues due the State from the fishing industries and leases of bottoms when in its judgment such prosecutions are for the best interests of industries or of the State and to that end may employ counsel having special knowledge of the fisheries laws and of the matters pertaining to fisheries and coastal conditions to work up and conduct such prosecutions in the inferior courts and to assist the solicitor in the court of general sessions and Supreme Court, should he desire such assistance."
Names revised; division changed to department
SECTION 1260. Chapter 7, Title 50 of the 1976 Code is amended to read:
"CHAPTER 7
Atlantic States Marine Fisheries Compact Commission
Section 50-7-10. In pursuance of Article III of the Atlantic States Marine Fisheries Compact, of which this State is a signatory, there shall be three members, hereinafter called Compact Commissioners, of the Atlantic States Marine Fisheries Commission, hereinafter called the Compact Commission, from this State. The first Compact Commissioner from this State shall be the Director of the department, ex officio, and the term of any such ex officio Commissioner shall terminate at the time he ceases to hold such office and his successor as Compact Commissioner shall be his successor as Director of the department. The second Compact Commissioner from this State shall be a legislator and member of the Commission on Interstate Cooperation of this State, ex officio, designated by the Commission on Interstate Cooperation, and the term of any such ex officio Commissioner shall terminate at the time he ceases to hold such legislative position or such position as Commissioner on Interstate Cooperation, and his successor as Compact Commissioner shall be named in like manner. The Governor, by and with the advice and consent of the Senate, shall appoint a citizen as a third Compact Commissioner, who shall have a knowledge of and interest in the marine fisheries problem. The term of such Compact Commissioner shall be three years and he shall hold office until his successor shall be appointed and qualified. Vacancies occurring in the office of such commissioner from any reason or cause shall be filled by appointment by the Governor, by and with the advice and consent of the Senate, for the unexpired term. The director of the department as ex officio commissioner may delegate, from time to time, to any deputy or other subordinate in his department or office, the power to be present and participate, including voting as his representative or substitute, at any meeting of or hearing by or other proceeding of the Compact Commission. The terms of each of the initial three members shall begin at the date of the appointment of the appointive Compact Commissioner, provided the compact shall then have gone into effect in accordance with Article II thereof and otherwise shall begin upon the date upon which the compact shall become effective in accordance with Article II.
Any commissioner may be removed from office by the Governor upon charges and after a hearing, but opportunity to be heard shall be given.
Section 50-7-20. The Compact Commission and the Compact Commissioners thereof shall have all the powers provided for in the compact and all the powers necessary or incidental to the carrying out of the compact in every particular.
Section 50-7-30. All officers of the State shall do all things falling within their respective provinces and jurisdiction necessary or incidental to the carrying out of the compact in every particular, it being hereby declared to be the policy of the State to perform and carry out the compact and to accomplish the purposes thereof. All officers, bureaus, departments and persons of and in the state government or administration of the State shall at convenient times and upon request of the Compact Commission furnish the Compact Commission with information and data possessed by them and shall aid the Compact Commission with information and data possessed by them or by loan of personnel or other means lying within their legal rights respectively.
Section 50-7-40. The Compact Commission shall keep accurate accounts of all receipts and disbursements and shall report to the Governor and the General Assembly on or before the tenth day of December in each year, setting forth in detail the transactions conducted by it during the preceding calendar year, and shall make recommendations for any legislative action deemed by it advisable, including amendments to the statutes of the State which may be necessary to carry out the intent and purposes of the compact between the signatory states.
Section 50-7-50. The State Auditor may from time to time examine the accounts and books of the Compact Commission, including its receipts, disbursements and such other items referring to its financial standing as the State Auditor may deem proper, and report the results to the State Budget and Control Board."
Names revised; commission and director changed to board
SECTION 1261. Chapter 9, Title 50 of the 1976 Code is amended to read:
"CHAPTER 9
Hunting, Fishing, and Trapping Licenses
Article 1
General Provisions
Section 50-9-10. A resident of this State may obtain, in the same manner as other fishing and hunting licenses are obtained, a combination fishing and hunting license in lieu of separate licenses for each activity. The combined license shall grant to the licensee the same privileges as that of a statewide fishing license, a statewide hunting license, and the resident big game permit. The cost of the license is seventeen dollars.
One dollar of the fee may be retained by the issuing agent and the balance remitted to the department. One-half of the fee must be used in the same manner as statewide fishing license revenue and the other half in the same manner as statewide revenue from hunting licenses.
Section 50-9-11. A resident of this State may obtain from the Columbia headquarters a lifetime combination license which grants him the same privileges as a statewide license as provided by Section 50-9-10. The license and fees are:
(1) Type A -- available only to an individual under two years of age -- three hundred dollars;
(2) Type B -- available only to an individual under sixteen years of age -- four hundred dollars;
(3) Type C -- available only to an individual sixteen years of age or older -- five hundred dollars;
(4) Type D -- available only to an individual sixty-four years of age or older -- nine dollars.
Section 50-9-12. (A) The board is authorized to designate not more than two days, which need not be consecutive, in each calendar year as free fishing days. During these designated days residents of this State, without obtaining a fishing license, may exercise the privileges of a holder of a fishing license, subject to all limitations, restrictions, conditions, and regulations applicable to the holder of a fishing license.
(B) The provisions of this section do not affect commercial fishing licenses.
Section 50-9-15. A resident of this State may obtain, in the same manner as other fishing and hunting licenses and the resident big game permit are obtained, a sportsman license in lieu of separate licenses for statewide fishing, statewide hunting for big game, and hunting on wildlife management areas. The cost of the license is forty-four dollars.
One dollar of the fee may be retained by the issuing agent and the balance remitted to the department.
Section 50-9-20. Notwithstanding any other provision of law to the contrary all hunting and fishing licenses shall be issued for the period July first to June thirtieth.
Section 50-9-30. No person shall be issued a hunting or fishing license as a state resident unless he shall furnish proof to the issuing agent that he is a resident of this State. Such proof shall be either the holding of a valid state driver's license or such other form of identification that the department may require which would furnish reasonable proof of such residency.
`Resident' means a person who is a citizen of the United States and who has been a domiciled resident of this State for thirty consecutive days or more immediately before the date of his application for license or permit and for one hundred eighty consecutive days or more immediately before the date of his application for a lifetime license. A person holding a state resident hunting or fishing license who cannot furnish proof of residency is guilty of a misdemeanor and, upon conviction, must be fined not less than fifty dollars nor more than one hundred dollars or be imprisoned for not less than ten days nor more than thirty days. A person holding a lifetime license who cannot furnish proof of residency is guilty of a misdemeanor and, upon conviction, must be fined not more than one thousand dollars or be imprisoned for not more than six months.
Article 3
Hunting Licenses
Section 50-9-120. Fees for residents' statewide or county licenses.
(1) For the privilege of hunting throughout the State by a resident of the State, a statewide license must be issued for a fee of twelve dollars, of which amount one dollar may be retained by the issuing agent.
(2) For the privilege of hunting only in the county of which the hunter is a resident, a county license must be issued upon payment of a fee of five dollars, of which amount one dollar may be retained by the issuing agent. No holder of a county license only may hunt in any county of which he is not a resident.
(3) For the privilege of hunting throughout the State by a resident of the State a lifetime statewide license may be issued from the Columbia headquarters for a fee of three hundred dollars.
Section 50-9-130. Every nonresident of the State shall pay a hunter's license fee of:
(1) seventy-five dollars for the privilege of hunting in the State during any one season from July first to June thirtieth, two dollars of which may be retained by the issuing agent;
(2) fifty dollars for a ten-day temporary license, two dollars of which may be retained by the issuing agent; or
(3) twenty-five dollars for a three-day temporary license, one dollar of which may be retained by the issuing agent.
Any type temporary license is valid for a period of either ten or three specified consecutive days as indicated on the license and the ten-day temporary license may be purchased only once a season by a single individual. Any person convicted of a violation of this section must be punished as provided in Section 50-9-250.
Section 50-9-135. (1) Every resident hunting deer, bear, or turkey in this State shall first purchase a big game permit from the department which must be in addition to the required resident hunter's license. The fee for the permit is six dollars, of which amount one dollar may be retained by the issuing agent.
(2) Every nonresident hunting deer, bear, or turkey in this State shall first purchase a big game permit from the department which is in addition to the required nonresident hunter's license. The fee for the permit is eighty dollars, of which amount one dollar may be retained by the issuing agent.
Section 50-9-140. The department may distribute and regulate the issuance of special, nonresident shooting preserve hunting licenses, applicable for the entire preserve season on any preserve in the State, for specified released species only, at a cost not to exceed eight dollars and fifty cents.
Section 50-9-145. In lieu of the fees provided in subsection (1) of Section 50-9-120, subsection (1) of Section 50-9-135, and Sections 50-9-150 and 50-9-450, any resident of this State who is aged sixteen through seventeen may pay a fee of sixteen dollars, of which amount one dollar may be retained by the issuing agent, for the privilege of engaging in the activities described in the above-cited sections.
The license must be countersigned by the parent or guardian of the teenager and the countersignature shall be considered as a certification of the age and residence of the teenage person.
Any person fraudulently obtaining such a license by falsely certifying the age or residence of another upon conviction must be fined the sum of two hundred dollars or be confined in the county jail for a period not to exceed ten days.
Section 50-9-150. The department shall promulgate regulations requiring persons sixteen and above who hunt on wildlife management areas to purchase a permit. The annual cost of a permit is not more than thirty dollars and fifty cents for state residents and not more than seventy-six dollars for nonresidents. The permit is valid for the year in which it is issued. One dollar of the permit cost may be retained by the issuing agent and the balance paid to the department. The funds so derived by the department must be retained and used exclusively for the procurement of wildlife management areas by rent, lease, or exchange and the management of the areas. The number of nonresident permits sold during a particular year shall not exceed the ratio of the number of nonresident permits sold for the previous year versus all permits sold to both residents and nonresidents for the previous year times the total number of permits sold in the previous year to both residents and nonresidents. Permits issued for one day only must be issued at a cost of no more than five dollars and fifty cents for state residents. The one-day permits will be issued from the department headquarters only upon the request of a hunter who has been drawn to participate in a department sponsored hunt.
The department may not lease any land for the Wildlife Management Area Program which, during the preceding twenty-four months, has been held under a private hunting lease by a club or individual. This restriction does not apply if the former lessee executes a voluntary consent to the proposed wildlife management area lease, the lessor cancels the lease for cause, or to lands which during the twenty-four months prior to June 5, 1986, were in the game management area program. The department may not pay more than the fair market value in the area for any lease acquired under this program. The department may not have under lease at any one time more than one million, six hundred thousand acres in the Wildlife Management Area Program. The department may establish open and closed seasons, bag limits, and methods for taking game on all wildlife management areas.
Section 50-9-155. For purposes of this section:
(1) `Migratory waterfowl' means members of the family Anatidae, including brants, ducks, geese, and swans.
(2) `Hunt' means the act of taking, obtaining, pursuing, trying to find, or diligently seeking for migratory waterfowl.
It is unlawful for a person, other than one exempt from the requirement of purchasing hunting licenses by Article 9, Chapter 9 of this title, to hunt any migratory waterfowl within this State without first procuring a state migratory waterfowl stamp and having a valid stamp for the year in his possession while hunting or transporting any migratory waterfowl. A person violating the provisions of this section is guilty of a misdemeanor and, upon conviction, must be fined not less than fifty dollars nor more than two hundred dollars or imprisoned for not more than thirty days.
Each stamp must be validated by the signature of the licensee written across the face of the stamp. The board shall furnish the stamps to its authorized agents for issuance or sale in the same manner as other types of licenses.
The fee for each stamp is five dollars and fifty cents. Fifty cents of the stamp cost may be retained by the issuing agent and the balance must be paid to the department. Each stamp expires on the last day of June following issuance.
The department may produce additional stamps as commemorative or collector's items which must be sold at a price of not less than five dollars and fifty cents with all of the proceeds being retained by the department.
All revenue derived from the sale of the stamp may be used only for the cost of printing, promotion, and production of the stamp and for those migratory waterfowl projects specified by the board for the development, protection, and propagation of waterfowl in the State. None of the funds may be expended for administrative salaries.
Section 50-9-160. The State Budget and Control Board shall purchase on competitive bids the licenses and other forms to be used each season.
Section 50-9-170. No person may alter any license or permit issued by the department or issue, obtain or attempt to obtain a license or permit by fraud. Any person violating the provisions of this section is guilty of a misdemeanor and, upon conviction, shall be fined not less than fifty dollars nor more than two hundred dollars or imprisoned not to exceed thirty days.
Section 50-9-180. No hunting license shall be sold or issued outside of the boundaries of this State.
Section 50-9-190. Every licensee while hunting game shall carry on his person his hunting license and, if applicable, his game management permit and big-game permit and upon demand shall show them to any enforcement officer or officer of the law.
Section 50-9-200. Duplicate hunting licenses shall be issued by the department only, upon affidavit from the licensee that he has lost his license and upon payment by the licensee of the cost of the duplicate.
Section 50-9-210. It shall be unlawful for any person to borrow, loan or exchange a hunting license with another person.
Section 50-9-220. Any person convicted of borrowing, lending or exchanging a hunting license with another person, in addition to suffering the penalties set forth in Section 50-9-240, shall forfeit any right to any hunting licenses issued to him and shall be prohibited from procuring another hunting license for the season for which the hunting license so borrowed, exchanged, or loaned was issued. Any person who attempts to hunt or hunts while under such prohibition shall, upon conviction, be fined not less than fifty dollars nor more than one hundred dollars or be imprisoned for not less than ten days nor more than thirty days.
Section 50-9-230. The form of all hunting licenses shall be of such quality and suitable design as may be designated by the department, the cost to be paid out of the game protection fund.
Section 50-9-240. Any resident of the State who violates the provisions of Sections 50-9-15, 50-9-135, 50-9-190, or 50-9-210, upon conviction, must be fined not less than one hundred nor more than two hundred dollars or imprisoned for not more than thirty days.
Section 50-9-250. Any nonresident who violates the provisions of Sections 50-9-130, 50-9-135, 50-9-190, 50-9-210, or 50-9-220, upon conviction, must be fined two hundred dollars or imprisoned for not less than forty-eight hours nor more than thirty days. No part of the monetary fine may be suspended in whole or in part.
Section 50-9-260. Notwithstanding the increases in the fees for existing hunting and fishing licenses or permits imposed by Sections 50-9-10, 50-9-15, 50-9-120, 50-9-150, 50-9-450 and 50-9-500, any person who has been a resident of this State for at least one year and who has attained the age of sixty-five may continue to obtain existing hunting or fishing licenses or permits without cost in the manner provided by law, and is further authorized to obtain without cost any new licenses or permits established by Section 50-9-135.
Article 5
Fishing Licenses
Section 50-9-410. Except as otherwise provided in Chapters 1 through 19 of this title, it shall be unlawful for any person to fish by use of manufactured tackle, equipment or artificial bait, other than hook and line, in the waters of this State unless such person has first obtained and has in his possession a proper license as required by Chapters 1 through 19 of this title. The term `waters', as used in Chapters 1 through 19 of this title shall apply only to fresh waters of the State.
Section 50-9-420. Except as otherwise expressly provided it shall be unlawful for any person to fish in fresh water of this State by use of a fly rod, casting rod, artificial bait or any manufactured tackle or equipment, other than ordinary hook and line, unless he has at first obtained an angler's license. A license shall not be required of a landowner or leaseholder fishing on his land or lands leased by him or of members of the family of such landowner or leaseholder.
Section 50-9-430. No person shall be required to possess a fishing license while fishing in strictly private ponds if he has the written permission of the owner or leaseholder of any such pond in his possession, unless such owner or leaseholder is present on the property. Provided, however, that this section shall not apply to commercial ponds.
Section 50-9-440. Any employee residing in this State may fish on the lands of his employer owning or leasing the land by the written permission of such employer or his superintendent without procuring a fishing license.
Section 50-9-450. The license fee for residents of this State for fishing by use of manufactured tackle, equipment, or artificial bait other than hook and line, is ten dollars. The license shall entitle the holder to fish in any of the freshwaters of this State without purchasing any other license or permit. The license must be obtained from the department or its agents. One dollar of the fee must be retained by the agent issuing the license and the remaining portion of the proceeds of the sale of the license must be remitted to the department for use only for the rearing, protection, propagation, and distribution of fish and game and the enforcement of the laws pertaining thereto, including salaries of enforcement and administrative personnel of the department and the publicity and dissemination of information, facts, and findings the department considers wise. Residents of this State may purchase a temporary license to permit them to fish for fourteen consecutive days for a fee of five dollars, the sales agent retaining one dollar of the fee and the remaining proceeds remitted to the department to be used as above provided.
Section 50-9-455. A resident of this State may obtain from the Columbia headquarters a lifetime fishing license granting him the same privileges as provided in Section 50-9-450 for a fee of three hundred dollars.
Section 50-9-460. All nonresidents of this State, before fishing for game or other fish in any manner in the inland streams or waters of this State, shall first procure a nonresident fishing license, the fee for which is thirty-five dollars, one dollar of which may be retained by the issuing agent. The license must be in form and design as designated by the department and must be carried upon the person of the licensee at all times when fishing. It is unlawful for the licensee, the selling agent, or any other person to alter or to change the date or to back date any license. Upon conviction for violation of this section the license shall immediately be forfeited to the State. Any person violating the provisions of this section must, upon conviction, be punished by a fine of two hundred dollars, of which no part may be suspended in whole or in part, or be imprisoned for a period not exceeding thirty days for each offense. All proceeds from the sale of nonresident fishing licenses and from fines and forfeitures from convictions of violations of this section must be credited to the county game fund of any county in which the licenses are sold, and the funds must be expended in the respective counties for the purposes of propagation of fish and game, for the promotion and conservation of wildlife resources, and for the enforcement of game laws.
Section 50-9-470. In lieu of obtaining a regular annual nonresident fishing license provided for by Section 50-9-460, a nonresident of this State may procure a temporary nonresident license for the purpose of fishing for game fish or other fish in this State. The temporary license authorizes the licensee to fish in any of the waters of this State for a period of seven specified consecutive days, in accordance with other regulations provided by law, and the license is valid for the period specified. The fee for the license is eleven dollars. Of this amount one dollar may be retained by the agent selling a license, and the balance must be remitted by the agent to the department and deposited in the State Treasury in the game protection fund. The department, at the end of each calendar year, shall credit the Santee-Cooper funds with an amount equal to the sum collected during the calendar year 1956 from the temporary license then in effect for those waters. If there is a general decline in revenue from all sources of the Wildlife and Freshwater Fish Division of the department, the amount credited may be reduced by the same percentage of the decline.
Section 50-9-480. It shall be unlawful for any nonresident of this State to fish in the fresh waters within the State without having first procured the license provided for in Section 50-9-470 or the regular nonresident fishing license provided for by Section 50-9-460.
Section 50-9-490. (1) Nonresidents owning nets used in the Savannah River to catch shad shall obtain an annual license for each net from the department at a cost of one hundred dollars. The department shall issue with each license a tag which shall be attached to the net.
(2) Nonresidents who operate shad nets in the Savannah River, whether such nets are owned by a resident or nonresident, shall obtain an annual license from the department at a cost of one hundred dollars. The license shall be on the operator's person at all times.
(3) Any person violating the provisions of this section is guilty of a misdemeanor and, upon conviction, shall be fined not less than twenty-five dollars nor more than one hundred dollars, or be imprisoned for not more than thirty days.
Section 50-9-500. It is unlawful for any resident of the State to fish in any of the waters of this State described in this section with nonmanufactured tackle or natural bait unless he has first obtained a special `reservoirs, lakes, and streams freshwater permit'. No person licensed under the provisions of Sections 50-9-10, 50-9-15, or 50-9-450 is required to purchase a permit.
The permits must be obtained from the department at a fee of three dollars. One dollar of the fee must be retained by the agent issuing the permit and the remaining portion of the proceeds of the sale of the permit must be remitted to the department and held in a separate fund for use in the protection and propagation of game and other fish within the waters described in this section in the counties adjacent to them. The provisions of this section apply to the following bodies of water within this State:
(1) the waters or backwaters of the Catawba and Wateree Rivers within Chester, Fairfield, Kershaw, and Lancaster Counties, except waters lying more than one hundred yards south of the Wateree Dam in Kershaw County;
(2) Lake Marion;
(3) Lake Moultrie, the Diversion Canal, and the Tail Canal;
(4) Lake Murray;
(5) all of the waters of the Savannah River between the Stevens Creek Dam and the highway bridge between Calhoun Falls, South Carolina, and Elberton, Georgia, including the waters impounded between Stevens Creek Dam and Clark Hill Dam;
(6) Keowee-Toxaway Lake in Oconee and Pickens Counties;
(7) Lake Jocassee;
(8) Lake Greenwood;
(9) Hartwell Reservoir;
(10) Lake Richard B. Russell;
(11) Lake Wiley;
(12) the Parr Hydroelectric Project Fish and Game Management Area:
(a) Parr Reservoir;
(b) Monticello Reservoir;
(c) Monticello Reservoir Sub-Impoundment.
The provisions of this section do not affect in any way any reciprocal agreement with the State of Georgia as to recognition of residents' fishing licenses or permits. Any person exempt from licensing requirements under Article 9 of this chapter is exempt from the requirement to purchase a permit as provided in this section.
Any person violating the provisions of this section is guilty of a misdemeanor and, upon conviction, must be punished by a fine of not less than fifty dollars nor more than two hundred dollars or by imprisonment for not more than thirty days.
Notwithstanding Section 50-9-460 or 50-9-470 or other provisions of Title 50, a nonresident of this State may procure a three-day permit as provided in this section at a cost of three dollars, one dollar of which may be retained by the issuing agent. The portion of the proceeds not retained by the agent must be remitted to the department and used as provided in this section.
Section 50-9-510. All persons applying for licenses shall receive such license as may be provided of such suitable design as may be designated by the department. Every person shall, while fishing, carry on his person such license and shall show his license to any officer upon demand. The cost of such licenses shall be paid for out of the game protection fund.
Section 50-9-520. The department shall provide for the furnishing of licenses under the terms of Sections 50-9-420 and 50-9-510 in accordance with the provisions concerning hunting licenses.
Section 50-9-530. It shall be unlawful for any person to borrow, lend or exchange a fishing license with another person. Any person convicted of violating the provisions of this section, Section 50-9-410 or Section 50-9-450 shall, in addition to suffering penalties set forth in Section 50-9-540, forfeit any right to any fishing license issued him and shall be prohibited from procuring another fishing license for the season for which the fishing or hunting license so borrowed, loaned or exchanged was issued.
Section 50-9-540. Any person violating any provision of Sections 50-9-410, 50-9-450 or 50-9-530 unless otherwise provided by law, is guilty of a misdemeanor and, upon conviction, shall be fined at least fifty dollars but not more than two hundred dollars or imprisoned for at least ten days but not more than thirty days.
Section 50-9-550. Anyone convicted of violating any of the provisions of Sections 50-9-420 and 50-9-510 shall be sentenced to pay a fine of not less than one hundred dollars nor more than two hundred dollars or to serve not less than forty-eight hours nor more than thirty days.
Section 50-9-560. Any person violating the provisions of Sections 50-9-470 and 50-9-480 shall, upon conviction, be punished by a fine of two hundred dollars or by imprisonment for not less than forty-eight hours nor more than thirty days. Notwithstanding any other provision of law, no part of the monetary fine may be suspended in whole or in part.
Article 9
Exemptions
Section 50-9-810. Any person who has been a resident of this State for three years and can produce a certificate from a licensed doctor of medicine that he is totally and permanently disabled may secure, without cost, a license to hunt and fish in this State.
For the purposes of this section, total and permanent disability shall mean the physical inability to perform work in any occupation, which physical inability appears to be of a permanent nature.
Applications for licenses shall be obtained from the local enforcement officer and shall be forwarded by the applicant to the department. The department shall review the application and issue licenses to qualified persons. All applications shall include the required doctor of medicine's certificate.
Any applicant who wilfully misrepresents his eligibility for a license under the terms of this section is guilty of a misdemeanor and, upon conviction, shall be fined not more than one hundred dollars nor less than twenty-five dollars.
Section 50-9-820. When the United States Department of Veterans' Affairs, the Veterans' Affairs Division of the Governor's Office, or a County Veterans' Affairs Officer issues an identification card stating the individual named thereon is one hundred percent permanently and totally disabled, the card shall be deemed to be a hunting and fishing license or permit for such individual in lieu of any and all other permits or licenses issued by the State or county.
Section 50-9-830. All blind residents of this State, all orphans of any orphanage or other eleemosynary institution of this State, any boy or girl scout, and physically handicapped and mentally retarded persons, as defined by Section 44-21-30(4), may hunt or fish within any county in this State without obtaining a license to do so, if the blind person or the superintendent or person in charge of the institution, scouts, or physically handicapped or mentally retarded persons shall first apply to the department for a permit allowing the blind person, orphans, scouts, or physically handicapped or mentally retarded persons to hunt or fish, giving the name of the blind person or each orphan, scout, or physically handicapped or mentally retarded person and the name of the institution, sponsoring entity, or troop. The superintendent or person in charge of the orphans, scouts, or physically handicapped or mentally retarded persons shall accompany them on the hunting or fishing trip for which the permit is granted. The department may issue the permit when the above conditions have been complied with.
Notwithstanding the provisions of this section or any other provision of law, mentally retarded persons permitted to hunt or fish pursuant to this section are not authorized in any instance to carry or use firearms while hunting or fishing hereunder.
Section 50-9-840. Any person who has been a resident of the State for at least one year, and who has attained the age of sixty-five years may secure a license to hunt and fish within any county in this State without cost, upon presentation of sufficient evidence to any enforcement officer that he has been a resident for such period and has attained the age of sixty-five years.
Section 50-9-860. No child under sixteen years of age is required to procure a hunting or fishing license or any other permit or license required for hunting or fishing unless that child engages in the taking of game or fish for commercial purposes.
Article 11
Suspension of Hunting and Fishing Privileges
Section 50-9-1010. The term `conviction' as used in this article shall also include the entry of any plea of guilty, the entry of any plea of nolo contendere and the forfeiture of any bail or collateral deposited to secure a defendant's appearance in court.
Section 50-9-1020. There is established the following point system to be used by the department in suspending hunting and fishing privileges of those persons participating in those activities within this State:
Violation Points
1. COMMON VIOLATIONS
(a) Resisting arrest by the use of force, violence, or weapons against the person or any employee of the department while engaged in his duties, any law enforcement officer aiding in the work of the department or any federally commissioned employee engaged in like or similar employment 18
(b) Attempting escape after lawful arrest 14
(c) Hunting or fishing in a state sanctuary at any time 14
(d) Hunting, fishing, or trapping out of season (except in a state sanctuary) 10
(e) Selling game or game fish 14
(f) Taking game or fish in any illegal manner not mentioned specifically elsewhere in this section 8
(g) Using a borrowed or altered hunting or fishing license 10
(h) Taking more than the legal limit of game or fish 8
(i) Hunting or fishing without a license in possession 6
(j) Trespassing to hunt, fish, or trap 10
(k) Violating Game Management area regulations 8
No points shall be assessed by authority of item (f) for fish taken on the seaward side of the saltwater-freshwater dividing lines as provided in Section 50-17-30.
2. HUNTING VIOLATIONS
(a) Killing or attempting to kill or molest deer from
a motorboat 14
(b) Night hunting deer or bear 18
(c) Illegal transportation of furs or hides and possession of untagged hides 10
(d) Trapping quail or wild turkeys 10
(e) Hunting over bait 8
(f) Killing or possession of antlerless deer, except as expressly provided by law 14
(g) Illegally night hunting other game, except deer, or hunting game in prohibited hours 8
(h) Buckshot in possession illegally 5
(i) Unplugged gun in possession while hunting--violation of Section 50-11-10 of the 1976 Code 4
(j) Killing or possessing of male wild turkeys (gobblers) during the closed season and killing or possessing wild turkey hens except as expressly provided by law 18
(k) Roost shooting of wild turkeys between official sunset and official sunrise 18
(l) Shooting wild turkeys over bait 18
(m) Hunting wild turkeys over bait 10
(n) Trespassing to hunt waterfowl 18
(o) Hunting waterfowl over bait 10
(p) Shooting waterfowl over bait 10
(q) Hunting waterfowl out of posted season 15
(r) Taking more than one waterfowl over the legal limit 15
3. FISHING VIOLATIONS
Trapping, netting, or seining game fish illegally 10
Section 50-9-1030. Each time a person is convicted by a court of law of a violation enumerated in Section 50-9-1020, the number of points assigned to such a violation shall be charged against such person. For each calendar year that passes thereafter in which the person received no points, the department shall deduct one half of the accumulated points if the total number of points is greater than three. If a person has three or less points at the end of a calendar year in which no points were received, then the department shall reduce his point total to zero; provided, however, that at no time shall any person's record be less then zero points.
Section 50-9-1040. The department shall suspend for one year the hunting and fishing privileges of any person who has eighteen or more points. Such suspension shall commence on the eleventh day after such person receives written notice by mail, return receipt requested of such suspension, and shall end on the same day the following year.
Section 50-9-1050. (a) Upon the determination by the department that a person has accumulated sufficient points to warrant the suspension of his privileges, the department shall notify such person in writing, return receipt requested, that his privileges have been suspended and such person shall return any license in his name to the department within ten days.
(b) Such person may, within ten days after such notice of suspension, request in writing a review, and upon receipt of such request, the department shall afford him a review. The department shall notify him of the date, time and place of the review and such person shall have the right to have his attorney present with him if he so desires.
(c) If such person requests a review, the suspension shall be held in abeyance until the day of the final disposition of his review by the department and if the suspension is upheld, the suspension shall commence on the eleventh day thereafter and end on the same day of the following year. The review by the department shall be limited to a determination of the validity of the violations and points assessed thereon. No probationary authority is given to the department by discretion or otherwise.
Section 50-9-1060. (a) Any person whose privileges have been suspended under the provisions of this article may, within ten days after notice of the result of the review, apply to the resident or presiding circuit judge of the circuit in which the applicant resides for a review upon the record certified to by the board to determine if the action taken by the department is lawful and in accordance with the provisions of this article. Such person shall have the right to have his counsel present with him if he so desires.
(b) If such person requests a review upon the record the suspension shall be held in abeyance until the day of the final disposition of such review upon the record and if the suspension is upheld, the suspension shall commence on that day and end on the same day of the following year.
Section 50-9-1070. After the expiration of the period of suspension, such person's record shall be cleared of any points and such person shall start anew with no points.
Section 50-9-1080. The department shall administer and enforce the provisions of this article and may make such rules and regulations necessary for its administration not inconsistent with the article. The department shall print and distribute at the time of selling hunting or fishing licenses a card or brochure explaining the point system.
Section 50-9-1090. Nothing contained in this article shall affect the action of the department in suspending, revoking or canceling any license when such action is mandatory under the provisions of any other law of this State.
Section 50-9-1100. Any person who hunts or fishes while under suspension is guilty of a misdemeanor and, upon conviction, shall be fined not less than two hundred fifty dollars nor more than five hundred dollars or imprisoned for not more than one year, or both, and such person shall have his hunting and fishing privileges suspended for an additional three-year period for each offense.
Section 50-9-1110. The points and penalties assessed under this article shall be in addition to and not in lieu of any other civil remedies or criminal penalties which may be assessed."
Commission, director, and certain divisions changed to board or department; names revised; committee and board duties provided; season for taking antlered deer revised
SECTION 1262. Chapter 11, Title 50 of the 1976 Code is amended to read:
"CHAPTER 11
Protection of Game
Article 1
General Provisions
Section 50-11-10. (A) The Federal Migratory Bird Treaty Act and its implementing regulations are the law of this State. However, the board annually may set special seasons, bag limits, and methods for hunting and taking waterfowl consistent with the regulations. A violation of the regulations or related state law is a misdemeanor punishable by a fine of not less than fifty nor more than one hundred dollars or thirty days' imprisonment.
(B) If a person is convicted of one or more of the following offenses, he must be fined not less than two hundred nor more than five hundred dollars or imprisoned not more than ninety days:
(1) trespassing to hunt waterfowl;
(2) hunting waterfowl over bait;
(3) shooting waterfowl over bait;
(4) hunting waterfowl more than fifteen minutes before or after regularly designated hunting hours;
(5) possessing more than one waterfowl over the legal limit;
(6) hunting waterfowl out of season.
Section 50-11-20. (A) As used in this article:
(1) ` Board' means the governing body of the South Carolina Department of Natural Resources.
(2) `Committee' means the Migratory Waterfowl Committee.
(3) `Department' means the South Carolina Department of Natural Resources.
(4) `Migratory waterfowl' means members of the family `Anatidae', including brants, ducks, geese, and swans.
(B) There is created the Migratory Waterfowl Committee composed of nine members. The Ducks Unlimited Regional Director for South Carolina and the immediate past and present chairman of Ducks Unlimited shall serve ex officio. Two members are appointed by the Chairman of the Agriculture and Natural Resources Committee of the House of Representatives, two are appointed by the Chairman of the Fish, Game and Forestry Committee of the Senate, and two are appointed by the Governor, all of whom must be cognizant of waterfowl. The members of the committee shall serve for terms of three years and until successors are appointed and qualify. Vacancies are filled for the unexpired term in the manner of the original appointment. The members of the committee shall elect a chairman annually. Members of the committee are eligible to receive such per diem, subsistence, and mileage as is provided by law for members of boards, commissions, and committees.
(C) The committee is responsible for the creation of the annual migratory waterfowl stamp provided in Section 50-9-155, shall provide the design to the department, and shall recommend regulations to the department for the creation of migratory waterfowl stamp prints, their administration, sale, and distribution, and other matters relating to the stamps and their prints. If the committee sells any of the stamps, it shall purchase them from the department for five dollars and fifty cents a stamp, all of which is retained by the department. Funds derived from the sale of prints and related artwork must be expended as follows:
(1) The portion of the funds necessary to make up fifty percent of the total funds derived from the sale of the migratory waterfowl stamps and the migratory waterfowl stamp prints must be transferred by the committee to the department to be used for its specified projects.
(2) Except for the amount necessary for the committee to administer and promote the sale of any prints, stamps, or related articles, the remainder of the funds derived from the sale of the prints and related articles must be disbursed to an appropriate nonprofit organization as determined by the board for the development of waterfowl propagation projects within Canada. The projects must specifically provide waterfowl for the Atlantic Flyway and must demonstrate evidence that the projects are acceptable to the appropriate governmental agencies having jurisdiction over the project areas.
(3) The committee shall have an annual audit of its finances conducted by the State Auditor and shall furnish a copy to the board.
Section 50-11-25. (A) It is unlawful to take migratory waterfowl from blinds or positions where the floor level of the blind or the position is:
(1) more than ten feet above surface level in or around freshwater; or
(2) more than five feet above the mean high water in or around saltwater.
(B) A blind on public lands or waters must be constructed from biodegradable materials.
(C) Once vacated, a blind on public lands or waters may be used by persons on a `first come, first served' basis.
(D) A person who violates this section is guilty of a misdemeanor and, upon conviction, must be fined not more than two hundred dollars or imprisoned not more than thirty days.
Section 50-11-30. In all instances when the open season for the hunting of game expires on Sunday, the period is extended to include the following Monday. When the open season for hunting of game begins on a Sunday, hunting is allowed on the Saturday preceding and the season for hunting game opens on that day.
Section 50-11-40. (A) It is unlawful for any person to hunt, catch, take, kill, or attempt to hunt, catch, take, or kill any game bird or game animal by the use or aid of recorded calls or sounds or recorded or electronically amplified imitations of calls or sounds.
(B) Any person violating the provisions of this section is guilty of a misdemeanor and, upon conviction, must be fined not less than fifty dollars nor more than one hundred dollars.
Section 50-11-45. In addition to weapons defined as primitive weapons by statute or regulation, a rifle, .36 caliber or larger, which uses black powder only as its propellant charge and which has a one-eighth inch nonmagnified peep site on the rear of the barrel, is a primitive weapon.
Article 2
Small Game
Section 50-11-110. The following species constitute small game animals: raccoon, opossum, rabbit, squirrel, fox, quail, bobcat, beaver, mink, muskrat, skunk, otter, grouse, and weasel.
Section 50-11-120. (A) Except as specified in this section the season for hunting small game is Thanksgiving Day through March first. However, there is no open season on grouse except in Game Zone 1.
(1) Game Zone 1:
(a) rabbit: September first through the day before Thanksgiving Day without weapons; Thanksgiving Day through March first with weapons;
(b) squirrel: October first through March first with weapons and dogs;
(c) fox: year round but no weapons may be used January second through August fifteenth;
(d) raccoon and opossum: October fifteenth through March first with weapons and dogs; August fifteenth through October fourteenth and March second through May fourteenth without weapons and with dogs only;
(e) quail: October first through the day before Thanksgiving Day without weapons; Thanksgiving Day through March first with weapons;
(2) Game Zone 2:
(a) rabbit: September first through the day before Thanksgiving Day without weapons; Thanksgiving Day through March first with weapons;
(b) squirrel: October first through March first with weapons and dogs;
(c) fox: year round but no weapons may be used January second through August fifteenth;
(d) raccoon and opossum: October fifteenth through March first with weapons and dogs; August fifteenth through October fourteenth and March second through May fourteenth without weapons and with dogs only;
(e) quail: October first through the day before Thanksgiving Day without weapons; Thanksgiving Day through March first with weapons;
(3) Game Zone 3:
(a) rabbit: September first through the day before Thanksgiving Day without weapons; Thanksgiving Day through March first with weapons;
(b) squirrel: October first through March first with weapons and dogs;
(c) fox: year round but no weapons may be used January second through August fifteenth;
(d) raccoon and opossum: September fifteenth through March fifteenth with weapons and dogs; August fifteenth through September fourteenth and March sixteenth through May fourteenth without weapons and with dogs only;
(e) quail: October first through the day before Thanksgiving Day without weapons; Thanksgiving Day through March first with weapons;
(4) Game Zone 4:
(a) rabbit: September first through the day before Thanksgiving Day without weapons; Thanksgiving Day through March first with weapons;
(b) squirrel: October first through March first with dogs and weapons;
(c) fox: year round but no weapons may be used February fifteenth through August fifteenth;
(d) raccoon and opossum: October fifteenth through March first with weapons and dogs; August fifteenth through October fourteenth and March second through May fourteenth without weapons and with dogs only;
(e) quail: October first through the day before Thanksgiving Day without weapons; Thanksgiving Day through March first with weapons;
(5) Game Zone 5:
(a) rabbit: September first through the day before Thanksgiving Day without weapons; Thanksgiving Day through March first with weapons;
(b) squirrel: October first through March first with weapons and dogs;
(c) fox: year round but no weapons may be used January second through August fifteenth;
(d) raccoon and opossum: September fifteenth through March fifteenth with weapons and dogs; August fifteenth through September fourteenth and March sixteenth through May fourteenth without weapons and with dogs only;
(e) quail: October first through the day before Thanksgiving Day without weapons; Thanksgiving Day through March first with weapons;
(6) Game Zone 6:
(a) rabbit: September first through the day before Thanksgiving Day without weapons; Thanksgiving Day through March first with weapons;
(b) squirrel: October first through March first with dogs and weapons;
(c) fox: August fifteenth through March fifteenth. Notwithstanding the provisions of this section, it is unlawful to hunt foxes, with or without firearms, in Game Zone 6 between March fifteenth and August fifteenth. However, there is no closed season for the running of foxes with dogs for the purpose of training the dogs in a private enclosed fox-hunting-dog-training facility;
(d) raccoon and opossum: September fifteenth through March fifteenth with weapons and dogs; August fifteenth through September fourteenth and March sixteenth through May fourteenth without weapons and with dogs only;
(e) quail: Monday before Thanksgiving Day through the first Saturday in March with weapons; October first through the Sunday before Thanksgiving Day without weapons;
(7) Game Zone 7:
(a) rabbit: September first through the day before Thanksgiving Day without weapons; Thanksgiving Day through March first with weapons;
(b) squirrel: October first through March first with dogs and weapons;
(c) fox: year round but no weapons may be used January second through August fifteenth;
(d) raccoon and opossum: September fifteenth through March fifteenth with weapons and dogs; August fifteenth through September fourteenth and March sixteenth through May fourteenth without weapons and with dogs only;
(e) mink: September fifteenth through March first;
(f) muskrat: September fifteenth through March first;
(g) otter: September fifteenth through March first;
(h) quail: October first through the day before Thanksgiving Day without weapons; Thanksgiving Day through March first with weapons;
(8) Game Zone 8:
(a) rabbit: September first through the day before Thanksgiving Day without weapons; Thanksgiving Day through March first with weapons;
(b) squirrel: October first through March first with weapons and dogs;
(c) fox: year round but no weapons may be used January second through August fifteenth;
(d) raccoon and opossum: September fifteenth through March fifteenth with weapons and dogs; August fifteenth through September fourteenth and March sixteenth through May fourteenth without weapons and with dogs only;
(e) quail: October first through the day before Thanksgiving Day without weapons; Thanksgiving Day through March first with weapons;
(9) Game Zone 9:
(a) rabbit: September first through the day before Thanksgiving Day without weapons; Thanksgiving Day through March first with weapons;
(b) squirrel: October first through March first with weapons and dogs;
(c) quail: Thanksgiving Day through the first Saturday in March;
(d) fox: year round without weapons; with weapons September first through January first;
(e) raccoon and opossum: September fifteenth through October fourteenth; March second through March fifteenth without weapons and with dogs only; October fifteenth through March first with weapons and dogs. All hunting of raccoon and opossum in Game Zone 9 must be at night. Night as used in this section is that time between official sunset one day and official sunrise the following day;
(f) mink: November first through March first;
(g) muskrat: November first through March first;
(h) otter: November first through March first;
(i) skunk: November first through March first;
(j) quail: October first through the day before Thanksgiving Day without weapons; Thanksgiving Day through March first with weapons;
(10) Game Zone 10:
(a) rabbit: September first through the day before Thanksgiving Day without weapons; Thanksgiving Day through March first with weapons;
(b) squirrel: October first through March first with weapons and dogs;
(c) fox: year round but without weapons January second through August fifteenth;
(d) raccoon and opossum: September fifteenth through March fifteenth with weapons and dogs; August fifteenth through September fourteenth and March sixteenth through May fourteenth without weapons and with dogs only;
(e) mink: September fifteenth through March first;
(f) muskrat: September fifteenth through March first;
(g) otter: September fifteenth through March first;
(h) quail: October first through the day before Thanksgiving Day without weapons; Thanksgiving Day through March first with weapons;
(11) Game Zone 11:
(a) rabbit: September first through the day before Thanksgiving Day without weapons; Thanksgiving Day through March first with weapons;
(b) squirrel: October first through March first with weapons and dogs;
(c) fox: year round but without weapons January second through August fifteenth;
(d) raccoon and opossum: September fifteenth through March fifteenth with weapons and dogs; August fifteenth through September fourteenth and March sixteenth through May fourteenth without weapons and with dogs only. Hunting of raccoon in Game Zone 11 must be at night;
(e) quail: Monday before Thanksgiving Day through March first with weapons; October first through the Sunday before Thanksgiving Day without weapons;
(B) In all game zones it is lawful to run rabbits with dogs at any time during the year in enclosures approved by the department.
(C) The season dates in this section are inclusive, except as otherwise provided. It is unlawful to hunt a game animal except during the seasons provided and as specified in this section. Unless otherwise specified during a small game season when weapons are allowed, dogs also may be used.
Section 50-11-130. A person hunting with firearms in Game Zone 9 from the first of May through August thirty-first of each year is guilty of a misdemeanor and, upon conviction, must be fined in an amount not to exceed one hundred dollars or imprisoned for a term not to exceed thirty days. If during any year the opening of the season for the hunting of doves is scheduled to begin prior to September first, the period during which hunting with firearms is prohibited under this section must be adjusted for that year to conform.
Section 50-11-140. During any period in which raccoons and opossums are allowed to be hunted without firearms, it is unlawful to hunt such game when carrying on one's person or in one's vehicle any firearm, saw, ax, artificial calling device, or tree-climbing device. Mouth-operated calling devices may be used in field trials as provided by the department in Section 50-11-2100.
Section 50-11-150. For purposes of this section day means the time between one-half hour before sunrise one day and one-half hour before sunrise the following day. Night means the time between official sunset one day and official sunrise the following day. Where bag limits are specified on `a night' basis, and there is a day season specified in Section 50-11-120, there is no limit on game taken during daylight hours. It is unlawful to exceed the small game bag limits as follows:
(1) Game Zone 1:
(a) quail: ten a day;
(b) grouse: three a day;
(c) rabbit: five a day;
(d) squirrel: ten a day;
(e) fox: no limit;
(f) raccoon: three a party a night;
(g) opossum: three a party a night;
(2) Game Zone 2:
(a) quail: ten a day;
(b) rabbit: five a day;
(c) squirrel: ten a day;
(d) fox: no limit;
(e) raccoon: three a party a night;
(f) opossum: three a party a night;
(3) Game Zone 3:
(a) quail: fifteen a day;
(b) rabbit: five a day;
(c) squirrel: ten a day;
(d) fox: no limit;
(e) raccoon: no limit;
(f) opossum: no limit;
(4) Game Zone 4:
(a) quail: fifteen a day;
(b) rabbit: five a day;
(c) squirrel: ten a day;
(d) fox: no limit;
(e) raccoon: three a party a night;
(f) opossum: three a party a night;
(5) Game Zone 5:
(a) quail: ten a day;
(b) rabbit: five a day;
(c) squirrel: ten a day;
(d) fox: no limit;
(e) raccoon: three a party a night;
(f) opossum: no limit;
(6) Game Zone 6:
(a) quail: fifteen a day;
(b) rabbit: five a day;
(c) squirrel: ten a day;
(d) fox: no limit;
(e) raccoon: no limit;
(f) opossum: no limit;
(7) Game Zone 7:
(a) quail: ten a day;
(b) rabbit: five a day;
(c) squirrel: ten a day;
(d) fox: no limit;
(e) raccoon: no limit;
(f) opossum: no limit;
(8) Game Zone 8:
(a) quail: twelve a day;
(b) rabbit: five a day;
(c) squirrel: ten a day;
(d) fox: no limit;
(e) raccoon: three a party a night;
(f) opossum: no limit;
(9) Game Zone 9:
(a) quail: fifteen a day;
(b) rabbit: five a day;
(c) squirrel: ten a day;
(d) fox: no limit;
(e) raccoon: two a party a night;
(f) opossum: no limit;
(10) Game Zone 10:
(a) quail: ten a day;
(b) rabbit: five a day;
(c) squirrel: ten a day;
(d) fox: no limit;
(e) raccoon: three a night;
(f) opossum: no limit;
(11) Game Zone 11:
(a) quail: fifteen a day;
(b) rabbit: five a day;
(c) squirrel: ten a day;
(d) fox: no limit;
(e) raccoon: no limit;
(f) opossum: no limit.
Section 50-11-160. It is unlawful for any person to trap rabbits, except that a landlord or tenant may use not more than five rabbit boxes on lands on which he has exclusive control during the open season for rabbits as provided by law.
Section 50-11-170. Any person who buys, sells, or displays for sale in Game Zones 2 and 4 the carcasses of wild rabbits or parts of wild rabbits is guilty of a misdemeanor and must be fined not less than twenty-five dollars nor more than two hundred dollars or imprisoned for not more than thirty days.
Section 50-11-180. The trapping or snaring of quail is prohibited except as provided for scientific or propagation purposes.
Article 3
Big Game
Section 50-11-310. Until July 1, 1993, the open season for taking antlered deer is:
(1) As set by the department between the dates of October first and January first in Game Zones 1, 2, and 4. The department may designate the sex of the deer that may be taken and may promulgate regulations for the proper control of the deer harvest in these games zones.
(2) In Game Zone 5, antlered deer may be taken from September fifteenth through January first.
(3) In Game Zone 7, by bow and arrow from September first through January first and with firearms from September fifteenth through January first.
(4) In Game Zone 8, from September fifteenth through January first.
(5) In Game Zone 9, antlered deer from August fifteenth to August thirty-first with bow and arrow only; antlered deer from September first through January first with firearms and antlerless deer from December fifteenth through January first with bow and arrow only.
(6) In Game Zone 10, from September first through January first with bow and arrow only. Antlered deer may be taken with firearms from September fifteenth through January first.
(7) Except as provided above, the season for taking antlered deer is from August fifteenth through January first.
(8) It is unlawful to pursue deer with dogs except during the prescribed season for hunting deer.
From and after July 1, 1993, the open season for taking antlered deer is:
(1) As set by the department between the dates of October first and January first in Game Zones 1, 2, and 4. The department may designate the sex of the deer that may be taken and may promulgate regulations for the proper control of the deer harvest in these games zones.
(2) In Game Zone 5, antlered deer may be taken from September fifteenth through January first.
(3) In Game Zone 7, by bow and arrow from September first through January first and with firearms from September fifteenth through January first.
(4) In Game Zone 8, from September first through January first.
(5) In Game Zone 9, antlered deer from August fifteenth to August thirty-first with bow and arrow only; antlered deer from September first through January first with firearms and antlerless deer from December fifteenth through January first with bow and arrow only.
(6) In Game Zone 10, from September first through January first with bow and arrow only. Antlered deer may be taken with firearms from September fifteenth through January first.
(7) Except as provided above, the season for taking antlered deer is from August fifteenth through January first.
(8) It is unlawful to pursue deer with dogs except during the prescribed season for hunting deer.
Section 50-11-335. The bag limit on deer is as follows:
Game Zones 1, 2, and 4: As set by the department.
Game Zone 8: Five antlered deer a season.
Game Zone 7: One antlered deer a day not to exceed five a season.
Game Zone 10: five antlered deer a season.
For all other game zones, there is no day or season limit on antlered deer.
Section 50-11-340. Any person convicted of hunting deer during the closed season must be fined not less than one hundred dollars nor more than two hundred dollars or imprisoned for not more than thirty days. None of the fine may be suspended.
Section 50-11-350. Any person taking, attempting to take, or having in his possession deer illegally or taking, attempting to take, or killing deer in any way prohibited by the department in Game Zone 1, 2, or 4 and on wildlife management area lands throughout the State is guilty of a misdemeanor and, upon conviction, must be fined not more than two hundred dollars or imprisoned for not more than thirty days.
Section 50-11-355. It is unlawful to hunt deer within three hundred yards of a residence without permission of the owner and occupant. Anyone violating the provisions of this section is guilty of a misdemeanor and, upon conviction, must be fined not more than two hundred dollars or imprisoned not more than thirty days. The provisions of this section do not apply to a landowner hunting on his own land.
Section 50-11-356. It is unlawful to discharge a gun or weapon within three hundred yards of a poultry layer or broiler house containing live poultry without permission of the owner. Anyone knowingly violating the provisions of this section is guilty of a misdemeanor and, upon conviction, must be fined not more than two hundred dollars or imprisoned not more than thirty days. The provisions of this section do not apply to a landowner discharging a gun or weapon on his own land.
Section 50-11-380. In Game Zone 1 it is unlawful, except during the season when the hunting of deer and bear is lawful, for any person engaged in the hunting of any game whatsoever to have in his possession any ammunition loaded with buckshot or larger shot or, while so engaged, to have in his possession a rifle, the caliber of which is greater than a caliber twenty-two, rimfire, or any rifle ammunition of a greater caliber than twenty-two.
Any person convicted of violating the provisions of this section must be imprisoned for not more than thirty days or fined not more than two hundred dollars.
Section 50-11-390. (A) In Game Zones 1, 2, and 4 the department may declare open seasons and set bag limits and methods of hunting and taking antlerless deer provided in Sections 50-11-120 and 50-11-410.
In all other game zones the department may declare open seasons, set bag limits and methods of hunting and taking antlerless deer, and issue antlerless deer quota permits of fifty dollars each to landowners or lessees for the hunting and taking of antlerless deer. Derived revenue must be used to administer the permits and conduct deer research and management statewide.
(B) The department may declare an open season for taking antlerless deer only between October first and January first. Antlerless deer taken pursuant to a quota permit must be tagged with a valid antlerless deer tag and reported. The tag must be attached permanently to the lower jaw of the deer immediately after it is taken and before it is transported.
(C) A person violating this section is guilty of a misdemeanor and, upon conviction, must be punished as in Section 50-11-410.
(D) The department may close the season and suspend or revoke a quota permit when environmental conditions or other factors warrant.
Section 50-11-400. It is unlawful for anyone in this State to have in his possession any deer with the head detached when the person is in transit from any woods, swamps, fields, or roads. Any person convicted of transporting a deer with the head detached must be fined not more than two hundred dollars or imprisoned for not more than thirty days.
Section 50-11-410. For purposes of this chapter, antlerless deer means a female (doe) deer, a male (buck) deer not exhibiting two inch antlers visible above the natural hairline, or a male (buck) deer that has shed, broken, or otherwise lost its antlers. In South Carolina, it is unlawful to hunt, kill, take, or possess any antlerless deer on any property unless an open season has been declared on that property or an antlerless deer quota permit has been issued for the legal harvest of antlerless deer on that specific property. Any person violating the provisions of this section is guilty of a misdemeanor and, upon conviction, must be fined not more than two hundred dollars or imprisoned for not more than thirty days.
Section 50-11-420. Any person in whose possession recently killed venison or fresh deerskin is found during the closed season for hunting deer in that game zone by law is guilty of a misdemeanor and, upon conviction, must be fined not less than fifty dollars nor more than one hundred dollars or imprisoned for not more than thirty days.
Section 50-11-430. (A) It is unlawful to:
(1) hunt, take, or attempt to take a bear except during the open season which is set by the department;
(2) buy, sell, barter, or exchange a bear or bear part;
(3) possess or transport a freshly killed bear or a bear part except during the open season for hunting and taking bears.
(B) Each act constituting a violation is a separate offense.
(C) A person violating the provisions of this section is guilty of a misdemeanor and, upon conviction, must be fined not more than two thousand five hundred dollars or imprisoned for not more than two years, or both. The hunting and fishing privileges of a person convicted under the provisions of this section must be suspended for three years. Equipment used or intended for use in violating this section is forfeited to the department. The court may order that restitution be paid to the department of not less than one thousand five hundred dollars for each bear or bear part which is the subject of a violation of this section.
Section 50-11-440. It is unlawful to use any type bait to concentrate the bear population in any area or to lure them to any location which gives the hunter an unnatural advantage when he is hunting bear.
Section 50-11-500. (1) It is unlawful for any person to rob any wild turkey nest or own, possess, control, sell, or otherwise dispose of wild turkey eggs unless the possession of the eggs is authorized by permit issued by the department under the provisions of Section 50-11-1180.
(2) It is unlawful for any person to trap or snare any wild turkey or to hunt or shoot a wild turkey at any time from any natural or artificial blind or hiding place when the turkey is lured by bait. This does not apply to mechanical feeders when used in a planned conservation and management program approved by the department.
(3) It is unlawful for any person to hunt, kill, or possess female wild turkeys unlawfully killed at any time unless the department sets special open seasons for their taking under the provisions of Sections 50-11-520, 50-11-530, and 50-11-540.
(4) It is unlawful for any person to buy, sell, offer for sale, barter, or have in possession for sale any wild turkeys.
(5) It is unlawful for any person to release in the wild any pen-raised wild turkey unless that person is granted a permit to do so by the department. These permits are made after the department has caused a thorough study of the area on which pen-raised turkeys are to be released. The release of these turkeys is to take place under the supervision of department personnel. No pen-raised turkey may be released for any purpose unless they have been examined for parasites or disease and the release approved by the department not less than thirty days before the date of their release.
(6) It is unlawful for any person to buy, sell, offer for sale, barter or have in possession for sale any pen-raised wild turkeys or domestic turkeys for purposes of release in the wild. The department may authorize pen-raised wild turkeys to be released under permit on licensed privately owned shooting preserves if the wild turkeys are designated as legal shooting preserve game by the department, if they have been examined for parasites or disease, and the release approved by the department not less than thirty days before the date of their release. The taking of wild turkey on licensed shooting preserves is governed by Article 7 of this chapter.
(7) It is unlawful for any person to sell or give away pen-raised wild turkeys which are authorized to be released on licensed shooting preserves without the written consent of the department.
(8) It is unlawful for any person to shoot any wild turkey on its roost between thirty minutes after official sunset and thirty minutes before official sunrise.
(9) It is unlawful for any person to possess pen-raised wild turkeys without a possession permit issued by the department.
(10) A person who hunts or attempts to hunt a wild turkey is required to have in his possession a set of wild turkey transportation tags issued by the department or its designated agent at no cost. A wild turkey killed must be tagged before being transported from the point of kill. All bagged wild turkeys must be checked at a designated wild turkey check station. The daily bag limit for wild turkeys is two a day, not to exceed five during any one license year, and no person may take more than two wild turkeys during an open fall season. No hunter may possess more than one set of turkey tags. A set consists of five tags.
(11) It is unlawful for a person to take or attempt to take a wild turkey from a vehicle on a public road.
(12) It is unlawful for a person to take or attempt to take a wild turkey with a rifle.
Any person violating the provisions of this section is guilty of a misdemeanor and, upon conviction, must be fined not more than two hundred dollars or imprisoned not more than thirty days except, upon conviction, any person unlawfully buying, selling, offering for sale, bartering, or having in possession any wild turkey or wild turkey eggs must be fined twenty-five dollars for each wild turkey or egg bought, sold, offered for sale, bartered, or possessed for sale or unlawfully possessed. Each day's violation constitutes a separate offense.
Section 50-11-510. It is unlawful for a person to hunt or take or attempt to hunt or take a wild turkey by means of, or aid or use of, bait or baiting or on or over any baited area.
As used in this section, `bait' or `baiting' means the placing, depositing, exposing, distributing, or scattering of salt, shelled, shucked, or unshucked corn, wheat, or other grain, or other foodstuffs to constitute for wild turkeys a lure, attraction, or enticement to, on, or over any areas where hunters are attempting to take them, and `baited area' means an area where salt, shelled, shucked, or unshucked corn, wheat, or other grain, or other foodstuffs capable of luring, attracting, or enticing wild turkeys is directly or indirectly placed, exposed, deposited, distributed, or scattered, and the area remains a baited area for ten days following complete removal of all bait.
Section 50-11-520. The department may make special studies in all game zones of this State which have been restocked with wild turkeys and, after such studies the department may declare open or closed seasons of such duration as it considers advisable for the taking of turkeys in areas concerned. However, in Game Zones 6 and 11, the open and closed seasons for the taking of wild turkey are as provided in Section 50-11-560 except in those areas under restocking agreements with the department.
Section 50-11-530. The department may, at its discretion, prescribe methods by which turkeys may be taken in each game zone and may fix the specific areas of the zones in which turkeys have become numerous enough to be harvested. The department may designate the sex of the turkeys that may be taken and may prescribe any other regulations considered necessary and expedient for the proper control of the harvesting of turkeys in the zones. The bag limit for turkeys in Game Zones 6 and 11 is not more than two male turkeys a day and not more than five male turkeys a season.
Section 50-11-540. Any person taking, attempting to take, or having in his possession turkey illegally or taking, attempting to take, or killing turkey in any way not prescribed by the department is guilty of a misdemeanor and, upon conviction, must be fined not less than fifty dollars nor more than one hundred dollars or imprisoned for not more than thirty days. Every vehicle, boat, animal, firearm, or other equipment used in hunting turkeys in violation of Sections 50-11-520 and 50-11-530 or in the possession of persons convicted of violations at the time of the violations is forfeited to the State and may be confiscated by any peace officer who shall deliver the items to the department.
For purposes of this section, a conviction for unlawfully hunting turkeys is conclusive as against any convicted owner of the above mentioned property.
In all other instances forfeiture is accomplished by the initiation by the State of an action in the circuit court in the county in which the property was seized giving notice to owners of record and lienholders of record or other persons having claimed an interest in the property subject to forfeiture and an opportunity to appear and show, if they can, why the property should not be forfeited and disposed of as provided for by this section. Failure of any person claiming an interest in the property to appear at the above proceeding after having been given notice of the proceeding constitutes a waiver of his claim and the property is forfeited immediately to the State.
Notice of the above proceedings is accomplished by: (a) personal service of the owner of record or lienholder of record by certified copy of the petition or notice of hearing or (b) in the case of property for which there is no owner or lienholder of record, publication of notice in a newspaper of local circulation in the county where the property was seized for at least two successive weeks before the hearing.
Property constituted forfeited property by this section must be sold under the same procedure prescribed in Section 50-11-740.
Section 50-11-550. It is unlawful between the dates of February sixteenth and Thanksgiving Day for any person to discharge any weapon, other than a shotgun, within one-fourth of a mile of the backwaters of the Catawba River and its tributaries up to the point and including all waters impounded by the India Hook Dam.
Section 50-11-560. In Game Zones 6 and 11 male wild turkeys, gobblers, may be hunted from March fifteenth to May first, inclusive; but landowners of ten thousand acres or more may have an option of choosing the hunting season provided herein or a hunting season which extends from the day before Thanksgiving to March fifteenth of each year. If they elect the option of the season extending from the day before Thanksgiving to March fifteenth, hunting on such lands during such season is lawful upon the filing of a notarized statement of the election with the department at least ten days prior to the opening of the season.
Article 4
Night Hunting, Harassment of Wildlife,
Trespass Offenses
Section 50-11-700. The use of artificial lights from any vehicle or water conveyance for the purpose of observing or harassing wildlife is unlawful after 11:00 p.m.
Any person violating the provisions of this section is guilty of a misdemeanor and, upon conviction, must be fined not more than one hundred dollars or imprisoned for not more than thirty days.
Section 50-11-703. (A) In Game Zone No. 1 the use of artificial lights from any vehicle or water conveyance for the purpose of observing or harassing wildlife is unlawful.
(B) Any person violating the provisions of this section is guilty of a misdemeanor and, upon conviction, must be fined not more than one hundred dollars or imprisoned for not more than thirty days.
Section 50-11-704. (A) In Game Zone No. 4 the use of artificial lights from any vehicle or water conveyance for the purpose of observing or harassing wildlife is unlawful.
(B) Any person violating the provisions of this section is guilty of a misdemeanor and, upon conviction, must be fined not more than one hundred dollars or imprisoned for not more than thirty days.
(C) Nothing in this section may be construed to prohibit the lawful hunting of raccoon and fox.
Section 50-11-705. In Game Zone No. 2 the use of artificial lights from any vehicle or water conveyance for the purpose of observing or harassing wildlife is unlawful.
Any person violating the provisions of this section is guilty of a misdemeanor and, upon conviction, must be fined not more than one hundred dollars or imprisoned for not more than thirty days.
Nothing in this section may be construed to prohibit the lawful hunting of raccoon and fox.
Section 50-11-706. (A) In Game Zones 9 and 10 the use of artificial lights from any vehicle or water conveyance for the purpose of observing or harassing wildlife is unlawful. However, this section does not prohibit an owner of real property or a person with a legal interest therein from the use of artificial lights from any vehicle or water conveyance for the purpose of surveying or protecting his property.
(B) Any person violating the provisions of this section is guilty of a misdemeanor and, upon conviction, must be fined not more than one hundred dollars or imprisoned for not more than thirty days.
(C) Nothing in this section may be construed to prohibit the lawful hunting of raccoon and fox.
Section 50-11-710. Night hunting in this State is unlawful except that raccoons, opossums, foxes, mink, and skunk may be hunted at night; however, they may not be hunted with artificial lights except when treed or cornered with dogs, or with buckshot or any shot larger than a number four, or any rifle ammunition of larger than a twenty-two rimfire.
For the purposes of this section, `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.
Any person violating the provisions of this section, upon conviction, must be fined for the first offense not more than one thousand dollars, or be imprisoned for not more than one year, or both; for the second offense within two years from the date of conviction for the first offense, not more than two thousand dollars nor less than four hundred dollars, or be imprisoned for not more than one year nor for less than ninety days, or both; for a third or subsequent offense within two years of the date of conviction for the last previous offense, not more than three thousand dollars nor less than five hundred dollars, or be imprisoned for not more than one year nor for less than one hundred twenty days, or both. Any person convicted under this section after more than two years have elapsed since his last conviction must be sentenced as for a first offense.
In addition to any other penalty, any person convicted for a second or subsequent offense under this section within three years of the date of conviction for a first offense shall have his privilege to hunt in this State suspended for a period of two years. No hunting license may be issued to an individual while his privilege is suspended, and any license mistakenly issued is invalid. The penalty for hunting in this State during the period of suspension, upon conviction, must be imprisonment for not more than one year nor less than ninety days.
The provisions of this section may not be construed to prevent any owner of property from protecting the property from destruction by wild game as provided by law.
It is unlawful for a person to use artificial lights at night, except vehicle headlights while traveling in a normal manner on a public road or highway, while in possession of or with immediate access to both ammunition of a type prohibited for use at night by the first paragraph of this section and a weapon capable of firing the ammunition. A violation of this paragraph is punishable as provided by Section 50-11-720.
Section 50-11-720. Notwithstanding the provisions of Section 50-11-710, any person convicted of the crime of night hunting for deer or bear must (1) for a first offense be fined not more than two thousand five hundred dollars or imprisoned as provided in Section 50-11-710; (2) for a second offense within two years of the first conviction be fined not less than five hundred dollars nor more than two thousand five hundred dollars or imprisoned as provided for a first offense; (3) for a third or subsequent offense within two years of a conviction for a second or subsequent offense be fined not less than six hundred dollars nor more than three thousand dollars or imprisoned as provided for a first offense.
Section 50-11-730. It is unlawful for any person to hunt, shoot, or in any way kill deer from a motorboat, raft, or other water conveyance or to molest deer while any part of the deer is in the water. Any person violating the provisions of this section is guilty of a misdemeanor and, upon conviction, must be imprisoned for not less than thirty days nor more than ninety days or be fined not less than one hundred dollars nor more than five hundred dollars.
`Hunting', as used in this section in reference to a vehicle, boat, or device, includes the transportation of a hunter to or from the place of hunting in violation of this section, or the transportation of the carcass of a deer, or any part of a deer, which has been unlawfully hunted or killed in violation of this section.
In addition to the penalty herein, every boat, raft, or other water conveyance, vehicle, animal, firearm, and any other device being used in the violation of this section must be confiscated and delivered to the department.
For purposes of this section, a conviction for unlawfully hunting deer from boats or other water conveyances is conclusive as against any convicted owner of the above-mentioned property.
In all other cases, the forfeiture and sale is accomplished by the procedure set forth in Section 50-11-740.
Section 50-11-740. Every vehicle, boat, animal, and firearm used in the hunting of deer or bear at night is forfeited to the State and must be confiscated by any peace officer who shall forthwith deliver it to the department.
`Hunting' as used in this section in reference to a vehicle or boat includes the transportation of a hunter to or from the place of hunting or the transportation of the carcass, or any part of the carcass, of a deer or bear which has been unlawfully killed at night.
For purposes of this section, a conviction for unlawfully hunting deer or bear at night is conclusive as against any convicted owner of the above-mentioned property.
In all other instances, forfeiture must be accomplished by the initiation by the State of an action in the circuit court in the county in which the property was seized giving notice to owners of record and lienholders of record or other persons having claimed an interest in the property subject to forfeiture and an opportunity to appear and show, if they can, why the property should not be forfeited and disposed of as provided for by this section. Failure of any person claiming an interest in the property to appear at the above proceeding after having been given notice of the proceeding constitutes a waiver of his claim and the property must be immediately forfeited to the State.
Notice of the above proceedings must be accomplished by:
(a) personal service of the owner of record or lienholder of record by certified copy of the petition or notice of hearing or;
(b) in the case of property for which there is no owner or lienholder of record, publication of notice in a newspaper of local circulation in the county where the property was seized for at least two successive weeks before the hearing.
The department shall sell any confiscated device at public auction for cash to the highest bidder in front of the county courthouse in the county where it is confiscated, after having given ten days' public notice of the sale by posting advertisement thereof on the door or bulletin board of the county courthouse or by publishing the advertisement at least once in a newspaper of general circulation in the county. Upon sale, the department shall pay over the net proceeds, after payment of the proper costs and expenses, if any, of the seizure, advertisement, and sale, including any proper expense incurred for the storage of the confiscated device, to the State Treasurer for deposit in the game protection fund. When the device is of greater value than one thousand dollars, the owner may at any time before sale redeem it by paying to the department the sum of one thousand dollars. When the device is of lesser value than one thousand dollars, the owner may at any time before sale redeem it by paying to the department the retail market value. The sums received by the department must be deposited in the game protection fund pursuant to the provisions of this section.
Section 50-11-750. It is unlawful for any person to feed or entice with food any American alligator (Alligator mississippiensis), except those persons feeding alligators maintained in protective captivity under a permit issued by the department pursuant to Section 50-15-50 for education, scientific, commercial, or recreational purposes; or department personnel, persons licensed, or otherwise authorized by the department, or county or municipal animal control personnel when relocating alligators by baiting or enticement. Any person violating the provisions of this section is guilty of a misdemeanor and, upon conviction, must be fined in an amount not to exceed two hundred dollars or imprisoned for not more than thirty days.
Section 50-11-760. The hunting of all game from public roads and rights-of-way owned by railroads is prohibited whenever the public roads or railroad rights-of-way are adjacent to lands that are posted against trespassing or hunting. The provisions of this section do not apply to hunting by owners of the adjacent lands or by persons who have permission of the owners to hunt the adjacent lands. `Hunting' as used in this section includes the hunting of deer by occupying stands therefor. Any person violating the provisions of this section is guilty of a misdemeanor and, upon conviction, must be fined not more than one hundred dollars or be imprisoned for a period not to exceed thirty days.
Section 50-11-780. No dog is required to be constrained by a leash while it is actually engaged in hunting game and under supervision. As used in this section `supervision' means that the owner of the dog or his designee is either in the vicinity of the dog or in the process of trying to retrieve the dog.
Article 5
Nongame Birds and Animals, Sanctuaries
Section 50-11-810. All species of game birds for which the legislature has not provided a specific open season are protected and may not be shot, trapped, destroyed, or attempted to be shot, trapped, or destroyed at any time. The department may prescribe an open season for the taking of exotic game birds, prescribe the method by which they may be taken, and fix the specific areas of any zone in which these exotic species may become numerous enough to be harvested. All areas not specifically open to hunting are closed to hunting. The department may designate the sex that may be taken and may prescribe any other regulations that may be considered wise and expedient for the harvest of these new game birds. Any person taking, attempting to take, or having in his possession these exotic game birds illegally or taking, attempting to take, or killing these exotic game birds in any way not prescribed by the department is guilty of a misdemeanor and, upon conviction, must be fined not less than fifty dollars nor more than one hundred dollars or imprisoned for not less than fifteen days nor more than thirty days. The provisions of this section are applicable to ruffed grouse.
Section 50-11-820. No person within the State may kill, catch, or have in his possession, living or dead, any resident or migratory wild bird, other than a game bird, or purchase or offer or expose for sale any wild nongame bird after it has been killed or caught, except as permitted by Section 50-11-1180.
Section 50-11-830. No part of the plumage, skin, or body of any bird protected by Section 50-11-820 may be sold or had in possession for sale whether the bird was captured or killed within or without the State.
Section 50-11-840. No person may take or destroy, or attempt to take or destroy, the nest or the eggs of any wild bird or have such nest or eggs in his possession, except as permitted in Section 50-11-1180.
Section 50-11-850. It is unlawful for any person or any firm or corporation acting as a common carrier, its officers, agents, or servants to ship, carry, take, or transport, either within or beyond the confines of the State, any resident or migratory wild nongame bird, except as permitted by Section 50-11-1180.
Section 50-11-851. The shooting, killing, or maiming of an Antwerp or homing pigeon, commonly known as a `carrier pigeon', is prohibited. Any person violating the provisions of this section is guilty of a misdemeanor and must be punished by a fine not exceeding ten dollars or imprisonment not exceeding ten days.
Section 50-11-852. It is unlawful for any person to molest or kill any of the birds of prey within this State. Birds of prey include all hawks, eagles, falcons, kites, vultures, owls, and ospreys. Anyone violating the provisions of this section is guilty of a misdemeanor and, upon conviction, must be fined not less than twenty-five dollars nor more than a hundred dollars or imprisoned for not more than thirty days.
Section 50-11-853. No person, except the owner, shall catch, kill, capture, or detain a homing, racing, or carrier pigeon which at the time of its capture or detention has the name or initials of its owner, its number, or another mark designating it as a homing, racing, or carrier pigeon. A person violating the provisions of this section is guilty of a misdemeanor and, upon conviction, must be fined not more than two hundred dollars or imprisoned for not more than thirty days.
Section 50-11-860. The department, without any costs whatsoever to the State, shall designate and establish sanctuaries where game, birds, and animals may breed unmolested, if any landowner enters into an agreement with the department to set aside and turn over to the State for that purpose a certain number of acres of land. There may be no hunting or trespassing upon these lands so designated as a sanctuary by anyone for five years from the date of the agreement. The department may post those lands so designated as a sanctuary in the name of the State and prosecute any persons hunting or trespassing on the lands. Any agreement entered into under authority given in this section may be terminated at any time by the landowner and the department.
Section 50-11-870. The following areas are declared to be bird sanctuaries:
(1) Port Royal Plantation on Hilton Head Island, Beaufort County;
(2) Highlands of Otranto Subdivision in Berkeley County;
(3) the Town of Bonneau in Berkeley County;
(4) St. James Estates, Spring Hill, Devonshire, Raintree, and Harbor Lakes Subdivisions in Berkeley County;
(5) the Subdivision of Clear View on James Island, Charleston County;
(6) James Island water district in Charleston County;
(7) the Subdivision of Lee - Jackson - McCalls Corner on James Island, Charleston County;
(8) St. Phillips Parish, St. Michaels Parish, and North Charleston Public Service District, Charleston County;
(9) Melrose, Longbranch, and Shaftesbury Subdivisions in Charleston County as bounded on the south by Highway 17, on the west by Long Branch Creek, on the north by Magwood property line, and on the east by the property line of Castlewood Subdivision;
(10) Forest Lakes Subdivision located in the City and County of Charleston;
(11) Winnsboro Mills in Fairfield County bounded on the north by the city limits of Winnsboro, on the south by the intersection of Highways 321, 34, and 215, on the west by the by-pass of Highway 321, and on the east by Golf Course Road;
(12) Avondale Forest as recorded at plat book RR page 186 and plat book BBB page 36 in the office of the Registrar of Mesne Conveyances for Greenville County;
(13) Lake Forest and Lake Forest Heights in Greenville County, bounded on the north by Edwards Road, on the east by Shannon Drive, on the south by Old Spartanburg Road, and the west by Highway 291;
(14) Botony Woods, Greenville County;
(15) Heritage Lakes in Greenville County;
(16) the City of Ocean Drive Beach, Horry County;
(17) Windy Hill Beach, Horry County;
(18) Briarcliff Acres in Horry County as bounded on the north by Highway 17, on the east by the Holmes property, on the south by the Atlantic Ocean, and on the west by the Patterson property;
(19) Kirkover Hills near Camden in Kershaw County;
(20) Sunnyhills Subdivision near Camden in Kershaw County;
(21) the area between the western city limits of Camden and the Seaboard Railroad tracks, Kershaw County;
(22) that area bounded by the Haile Street Extension, U.S. Highway No. 1, and Lake Shore Drive near Camden, Kershaw County;
(23) Saluda Gardens, Saluda Terrace, Westover Acres, and Saluda Hills Subdivisions in Lexington County;
(24) Town of Arcadia Lakes, Richland County;
(25) Community of Belvedere in Richland County;
(26) Deerfield Plantation, Berkeley County; River Hills Plantation, York County;
(27) City of Tega Cay, York County;
(28) the area in York County, consisting of a portion of the impounded waters of Lake Wylie lying south of State Highway 49 and east of State Highway 274, southward to the dam of Lake Wylie. That area lying on the eastern side of State Highway No. 72, embracing the Country Club Estates, the Rock Hill Country Club, the Oakdale School property, a portion of the Drennan property, and being bounded on the north by the Fewell property, on the east by the Fewell and Parrish properties, on the south by the old Mount Holly Road, and on the west and north by State Highway No. 72;
(29) the area known as the community of River Hills Plantation, Inc., in York County.
(30) the Town of Pawleys Island in Georgetown County.
(31) the area in Clarendon County consisting of that portion of Tawcaw Creek, adjacent to Goat Island, lying southeast of County Road 38, and extending into Lake Marion to the extent of the Santee National Wildlife Refuge boundaries lying east and west of that portion of Lake Marion.
It is unlawful to use shotguns, rifles, pellet guns, and BB guns within the area described in this section.
Section 50-11-875. The following area in Charleston County within the City of Charleston is declared to be a bird sanctuary:
From William Kennerty Drive along Highway 61, approximately 2,800 feet to Ashley Hall Plantation Road, then from Highway 61 along Ashley Hall Plantation Road, approximately 4,600 feet to Captiva Row, then from Ashley Hall Plantation Road along Captiva Row, approximately 1,500 feet to Ashley Hall Road, then from Captiva Row along Ashley Hall Road, approximately 400 feet to Boone Hall Drive, then from Ashley Hall Road along Boone Hall Drive, approximately 3,250 feet to William Kennerty Drive, then from Boone Hall Drive along William Kennerty Drive, approximately 1,050 feet to Highway 61 at the point of beginning.
It is unlawful for any person to trap, hunt, molest, or attempt to molest in any manner any bird or wild fowl or to molest any birds' nests or wild fowls' nests within the sanctuary.
Any person violating the provisions of this section is guilty of a misdemeanor and, upon conviction, must be fined not more than two hundred dollars or imprisoned for not more than thirty days.
Section 50-11-880. The following areas are designated as wildlife sanctuaries:
(1) the Sea Pines Public Service District on Hilton Head Island, Beaufort County;
(2) the Highlands of Fripp Island, Beaufort County;
(3) the Goose Creek Reservoir in Berkeley County including all lands lying within one-half mile of the shoreline of the reservoir;
(4) Lawton Bluff Subdivision and Lawton Plantation in Charleston County;
(5) Hobcaw Point Subdivision in the City of Mt. Pleasant, County of Charleston;
(6) Prestwood Lake Area, Darlington County, which includes Prestwood Lake and that area around the lake contained in a radius of three-fourths of a mile from the shore of the lake and bounded on the east by Sonoco Dam and on the west by a line running in a southerly direction across Black Creek from the New Sonoco Clubhouse;
(7) that area in Florence County known as Forest Lake bordered on the north by South Cashua Road and Highway 76, on the west by secondary road 106, on the south by Savannah Grove Road, on the east by Knollwood Road, and that portion of the lake east of Knollwood Road and that upland extending one hundred yards from the shore of the lake;
(8) Lake Oakdale in Florence County bordered on the north by the secondary road known as Stralton Drive, on the west by Pelican Lane and West Lake Oakdale Drive, on the south by Shearton Road until it intersects with Seaboard Coastline Railroad tracks, and on the east by West Lake Drive and Pine Needles Road;
(9) Pelham Estates I, II, and III, Stratton Place, and Watson's Orchard in Greenville County;
(10) that portion of McCormick County between Little River and the Savannah River lying south of Highway 378;
(11) Quail Run in York County.
It is unlawful to discharge any firearm including, but not limited to, BB guns and pellet rifles or to attempt to take or kill any wildlife within any of the above-described areas by any means.
If the department determines that, due to size, disease, or other extraordinary factors, a particular population of a species located in, on, or around a sanctuary described above constitutes a threat to the health, safety, and welfare of the public or to itself, or other species in, on, or around the sanctuary, it may authorize the taking of a sufficient number of species to reduce or eliminate the threat. The wildlife must be taken by department personnel or other persons acting under their supervision and the authorization for the taking limits the number of animals taken and the days, times, and methods to be used.
Section 50-11-883. (A) The portion of Lake Secession in Abbeville County lying south of Highway 184 is a wildlife sanctuary. It is unlawful for anyone to trap, hunt, molest, or attempt to molest in any manner any bird or other game animal within the sanctuary. Any person violating the provisions of this section is guilty of a misdemeanor and, upon conviction, must be fined not more than two hundred dollars or imprisoned for not more than thirty days.
(B) Vereen Memorial Historical Gardens in Horry County is a wildlife sanctuary. It is unlawful for anyone to trap, hunt, molest, or attempt to molest in any manner any bird or game animal within the sanctuary. Any person violating the provisions of this section is guilty of a misdemeanor and, upon conviction, must be fined not more than two hundred dollars or imprisoned for not more than thirty days.
Section 50-11-890. The following areas are designated bird and squirrel sanctuaries:
(1) Bayview Acres in Charleston County;
(2) all that area of the subdivision of Drayton on Ashley in Charleston County bounded as follows on the south by the Seaboard Coastline Railroad, on the east by the Ashley River, on the north at the corner of Highway 61, and the Seaboard Coastline Railroad for 2,585 feet bearing south 49 degrees 50'W., and on the west by Highway 61.
Section 50-11-900. The following areas are declared to be nongame bird sanctuaries:
(1) the Hannahan Public Service District located in Berkeley County;
(2) St. Andrews Parish in Charleston County.
Section 50-11-910. The land owned or managed by the National Audubon Society, Incorporated, in Berkeley and Dorchester Counties, known as the Francis Beidler Forest, is declared to be a sanctuary for the protection of game, birds, and other animals. There may be no hunting, fishing, or trespassing in the sanctuary. Fishing may be permitted by written authorization from the management of the Francis Beidler Forest only.
The management of the Francis Beidler Forest shall post along the outer boundaries of the land and mouths of all streams and creeks entering into the Francis Beidler Forest signs notifying the public that the area is a sanctuary and is closed to hunting and fishing except as authorized.
No flowers, shrubs, trees, or other plants may be damaged or removed from the park without permission from the management.
Any person convicted of violating the provisions of this section is guilty of a misdemeanor and, upon conviction, must be fined not more than two hundred dollars, or imprisoned for not more than thirty days.
Section 50-11-915. The land owned, leased, or managed by the Playcard Environmental Education Center in Horry County is declared a sanctuary for the protection of game, birds, and other animals. There may be no hunting, fishing, or trespassing in the sanctuary. Fishing may be permitted only by written authorization from the management of the center.
The management of the center shall post along the outer boundaries of the land and mouths of all streams and creeks entering into the Playcard Environmental Education Center signs notifying the public that the area is a sanctuary and is closed to hunting and fishing except as authorized.
No flowers, shrubs, trees, or other plants may be damaged or removed from the park without permission from the management.
A person convicted of violating the provisions of this section is guilty of a misdemeanor and, upon conviction, must be fined not more than two hundred dollars or imprisoned for not more than thirty days.
Section 50-11-920. The land owned or leased to Kershaw County to be used as a county park and streams or creeks entering into the lands are declared to be a sanctuary for the protection of game, birds, and animals. There may be no hunting, trapping, fishing, or trespassing thereon. Fishing is permitted by persons obtaining fishing permits from the management of the Kershaw County Park. Fishing is not permitted in the swimming area or when water in the lake is low for repairs.
The management of the Kershaw County Park shall post along the outer boundaries of the land and mouths of all streams and creeks entering into the Kershaw County Park signs notifying the public that the area is a sanctuary and closed to hunting and fishing except as authorized.
No flowers, shrubs, trees, or plants may be removed from the park without permission from the management.
No alcoholic beverages or persons under the influence of alcohol are permitted in the Kershaw County Park.
Dogs must be on a leash, except those used in the Field Trial Club events.
The Kershaw County Park may not be used as a dumping place for trash, garbage, or other refuse.
A part of the Kershaw County Park, about four hundred twenty-one acres, east of Pine Tree Creek, north of Burkett Branch, south of the land owned by Bowater Co. and T. L. Myers, and west of land owned by Bowater Co., and Bud Smith may be used by the Mid-Carolina Field Trial Clubs. The maintenance and development of these grounds into field trial grounds is under the supervision of the Mid-Carolina Field Trial Club. The club shall pay the costs of developing and maintaining the grounds. All clubs sponsoring trials on the grounds shall obtain permission from the department before a trial is held. Field trial dogs are permitted to exercise and train on the grounds during field trial seasons only when a trial is not in progress. Trapping of released birds is permitted by clubs for use in future trials only. Only blank ammunition may be used on trial areas. The superintendent of Kershaw County Park shall maintain jurisdiction over game law enforcement and security of this area.
Any person convicted of violating the provisions of this section is guilty of a misdemeanor and is subject to a fine of not more than two hundred dollars or imprisonment for a period not exceeding thirty days, or both.
Section 50-11-925. The land owned, leased, or managed by the South Carolina Future Farmers of America Camp of the Little River Neck section of Horry County is declared a sanctuary for the protection of game, birds, and other animals. There may be no hunting, fishing, or trespassing in the sanctuary. Fishing may be permitted only by written authorization from the management of the camp.
The management of the camp shall post along the outer boundaries of the land and mouths of all streams and creeks entering into the camp signs notifying the public that the area is a sanctuary and is closed to hunting and fishing except as authorized.
No flowers, shrubs, trees, or other plants may be damaged or removed from the camp without permission from the management.
A person convicted of violating the provisions of this section is guilty of a misdemeanor and, upon conviction, must be fined not more than two hundred dollars or imprisoned for not more than thirty days.
Section 50-11-930. It is unlawful for any person to trap, hunt, or molest in any manner any species of duck or geese, or to molest any duck or goose nest, on any water or tideland owned by the State within the following boundary:
Beginning at the westernmost tip of the Isle of Palms at the base of the bridge across Breach Inlet and running a course of 343 degrees true to a unnamed marsh island; thence following the low-water mark of the unnamed island in a northeasterly direction to the Intracoastal Waterway; thence across the Intracoastal Waterway to the north bank of the intersection of Swinton Creek and the Intracoastal Waterway; thence in a northeasternly direction along the bank of the Intracoastal Waterway to Hamlin Creek; thence 300 yards up the west bank of Hamlin Creek; thence across to the east bank of Hamlin Creek and following the creek bank to the westernmost tip of Goat Island at the Intracoastal Waterway; thence running in a northeasternly direction along the high-water mark of Goat Island to a point at latitude 32 degrees 48.5'N. and longitude 79 degrees 45.5'W.; thence running a course of 151 degrees true across the Intracoastal Waterway to the high-water mark of the Isle of Palms; and, thence following the high-water mark of the Isle of Palms to the westernmost tip of the island at the base of the bridge across Breach Inlet.
Any person violating the provisions of this section is guilty of a misdemeanor and, upon conviction, must be punished by a fine of not more than two hundred dollars or by imprisonment for not more than thirty days.
Section 50-11-940. The property of The Belle W. Baruch Foundation in Georgetown County, other than those areas whose surface is at or below mean high tide, is designated as a bird and game refuge, and it is unlawful for any person to trap, hunt, molest, or attempt to molest in any manner any bird, wild fowl, or game, including wild hogs, within the refuge, or to trespass in any manner upon the property of the Belle W. Baruch Foundation for that purpose. Any education and research activities conducted by the University of South Carolina or Clemson University, or under the supervision of the University of South Carolina or Clemson University is not unlawful.
Any person violating the provisions of this section is guilty of a misdemeanor and, upon conviction, must be fined not more than five hundred dollars or be imprisoned for not more than six months, or both.
Section 50-11-950. The lands owned by Brookgreen Gardens, as an eleemosynary corporation for southeastern flora and fauna, in Georgetown County and all streams, creeks, and waters, fresh, salt or mixed, entering into the lands are established as a sanctuary for the protection of game, other birds, and animals, and any hunting, shooting, fishing, or trespassing on the lands or waters is prohibited, except such hunting and shooting as may be carried on by permission of the trustees of Brookgreen Gardens, granted at an annual meeting of the trustees. Permission for hunting and shooting is not granted by the trustees unless it is apparent to them that there is an excess of deer or other game which may cause damage to the gardens or other property owned by the trustees. The public is allowed to fish in the Atlantic Ocean from the beaches of the area and in the saltwater creeks entering into it, under such regulations as may be promulgated by the Department of Parks, Recreation and Tourism having due regard for the safety of bathers and convenience of other users of the park. The trustees of the Brookgreen Gardens Corporation or the State Commission of Forestry shall post signs along the outer boundaries of the land and at the mouths of all streams and creeks notifying the public that the area is a sanctuary and closed to hunting and fishing, except as authorized by the terms of this section.
Nothing herein abridges or curtails the rights of the department to control and permit the oyster bottoms in the area under its jurisdiction.
Any person convicted of violating the provisions of this section is guilty of a misdemeanor and subject to a fine of not less than twenty-five dollars nor more than one hundred dollars or imprisonment for not exceeding thirty days.
Section 50-11-960. The following area is designated as the Paris Mountain Wildlife Sanctuary:
Beginning on Poinsett Highway (U.S. 25 North) at its intersection with Little Texas Road and following Little Texas Road to Roe Road and thence along Roe Road to a point opposite the northwestern boundary of Paris Mountain State Park and continuing with the western and southern boundaries of said Park to State Park Road; thence continuing south on State Park Road and Paris Mountain Road to Timber Lane; thence west on Timber Lane to Tryon Avenue; thence southwest on Tryon Avenue to Crestwood Road; thence north and west on Crestwood Road to Manley Drive and continuing generally west on Manley Drive, Dreamland Way, and Jervey Road to North Parker Road; thence generally north along North Parker Road to Phillips Trail and then along Phillips Trail to the intersection with Pistol Club Road; thence along Pistol Club Road to Pilot Road; thence generally north on Pilot Road to Club View Drive and on Club View Drive to the intersection of Old Buncombe Road; thence north on Old Buncombe Road to Poinsett Highway and from there to the beginning point at its intersection with Little Texas Road.
Any person killing or maiming any bird or animal within the sanctuary is guilty of a misdemeanor and, upon conviction, must be fined not more than two hundred dollars or imprisoned for not more than thirty days. Any person who kills squirrels on his own property is not subject to the provisions of this section.
Section 50-11-961. The campus of Greenville Technical College in Greenville County bounded on the north by East Faris Road, on the east by South Pleasantburg Drive (Highway 291), on the south by Cleveland Street, and on the west by the Reedy River, is designated as a bird and wildlife sanctuary.
It is unlawful for a person to trap, hunt, molest, or attempt to molest in any manner a bird or wild fowl or to molest any birds' nests or wild fowls' nests within the sanctuary, and it is unlawful for a person to trap, hunt, molest, or attempt to molest in any manner any wildlife within the sanctuary.
A person violating the provisions of this section is guilty of a misdemeanor and, upon conviction, must be punished by a fine of not more than one hundred dollars or by imprisonment for not more than thirty days.
Section 50-11-970. The area in Richland County consisting of the lands and waters owned by the Lake Dogwood Corporation is designated a waterfowl sanctuary. It is unlawful for any person to trap, hunt, or molest in any manner any species of duck or goose, or to molest any duck or goose nest in the refuge. Anyone violating the provisions of this section is guilty of a misdemeanor and, upon conviction, must be fined not more than two hundred dollars or be imprisoned for not more than thirty days.
Section 50-11-980. The lands and waters in Charleston Harbor and its adjacent estuarine system in Charleston County lying within the following boundaries are designated a wildlife sanctuary:
The area in Charleston County beginning at the foot of Station 22 ½ Street on Sullivan's Island, thence on a line north following Ben Sawyer Boulevard (Highway 703) into Mt. Pleasant to a point just south of Center Street where the marsh of the upper reaches of Jeanette Creek meets highland, thence turning 230 degrees southwest following a line to Pitt Street in Mt. Pleasant, thence turning northwest following Pitt Street to its intersection with Live Oak Avenue, thence northeast to Coleman Boulevard, thence following Coleman Boulevard across Shem Creek and continuing on a line 310 degrees northwest to the eastern range marker for the Drum Island Channel Range just south of Remley's Point, thence continuing northwest on the Drum Island Reach for approximately six thousand eighty feet, thence due west on a line across the Charleston peninsula for approximately seven thousand nine hundred sixty-six feet, thence turning 330 degrees northwest and continuing for approximately nine thousand six hundred forty-three feet along the east side of the Ashley River, thence turning 330 degrees northwest and continuing on a line for approximately five thousand eight hundred seventy feet, thence turning 240 degrees and continuing for approximately four thousand one hundred ninety-three feet, thence turning 134 degrees southeast and continuing approximately nine thousand six hundred forty-three feet to a point on the west bank of the Ashley River just south of the WTMA radio tower, thence turning 200 degrees south and continuing for approximately three thousand three hundred fifty-four feet along the west bank of the Ashley River, thence turning south 170 degrees for approximately three thousand seven hundred seventy-three feet, thence turning northwest 310 degrees and continuing for approximately four thousand one hundred ninety-three feet, thence turning south 190 degrees and continuing approximately five thousand thirty-one feet, thence returning east 105 degrees and continuing for approximately three thousand seven hundred seventy-three feet, thence turning south again 190 degrees and continuing for approximately two thousand five hundred sixteen feet to its intersection with Highway 61, thence turning southeast 120 degrees and continuing approximately nineteen thousand sixty-two feet to the north bank of Wappoo Creek, thence turning south 200 degrees and continuing approximately two thousand nine hundred thirty-five feet, thence turning southeast 144 degrees and continuing for approximately two thousand nine hundred thirty-five feet to a point just south of Harborview Road, thence turning east-southeast 100 degrees and continuing for approximately one thousand two hundred fifty-eight feet, thence turning southeast 130 degrees and continuing approximately one thousand six hundred seventy-seven feet, thence turning east 100 degrees and continuing for approximately four thousand one hundred ninety-three feet, thence turning northeast 30 degrees and continuing for approximately two thousand ninety-six feet, thence turning east 80 degrees and continuing for approximately one thousand two hundred fifty-eight feet, thence turning southeast 120 degrees and continuing for approximately one thousand two hundred fifty-eight feet, thence turning south 200 degrees and continuing approximately one thousand six hundred seventy-seven feet to the head of Kushiwah Creek, thence turning east-southeast 110 degrees and continuing approximately four thousand one hundred ninety-three feet, thence turning northeast 30 degrees and continuing for approximately eight hundred thirty-nine feet, thence turning northwest 320 degrees and continuing for approximately two thousand five hundred sixteen feet, thence turning north 20 degrees and continuing approximately six hundred twenty-nine feet, thence turning east-southeast 110 degrees and continuing for approximately two thousand nine hundred thirty-five feet, thence returning due north and continuing for approximately one thousand two hundred fifty-eight feet, thence turning due east and continuing for approximately three thousand seven hundred seventy-three feet along the southern edge of Charleston Harbor, thence turning northeast 60 degrees and continuing for approximately one thousand two hundred fifty-eight feet to the point at Fort Johnson, thence turning due south and continuing approximately nine thousand two hundred twenty-four feet to a point on the west bank of Schooper (Schooner) Creek, thence turning due east and continuing for approximately six thousand seven hundred eight feet across Morris Island along the dike on the north end of the spoil area, thence turning northeast 50 degrees and continuing approximately sixteen thousand three hundred fifty-one feet across the mouth of Charleston Harbor to the point of beginning on Sullivan's Island.
It is unlawful for any person to hunt, trap, molest, or to attempt to take or molest in any manner, any wild bird, bird egg, or mammal within the sanctuary. The department, its duly authorized agents, or persons with written permits issued by the department may engage in predator control, bird banding, and other scientific activities including the collection of specimens for scientific purposes intended to enhance, maintain, or further our understanding of wildlife populations within the sanctuary.
The department shall post the general outline of the sanctuary and during the nesting season shall conspicuously post bird nesting areas. Posting of bird nesting areas constitutes public notice that the areas are closed to entry. The term `molest' as used in this section includes, but is not limited to, walking upon posted lands or allowing pets to roam upon them. It is also unlawful for any person to remove or tamper with signs posted by the department pursuant to this section.
Nothing herein shall preclude the normal operations of the marine terminals and other facilities of the South Carolina State Ports Authority, or the dredging and disposal operations by the U.S. Army Corps of Engineers, South Carolina State Ports Authority, or their agents or contractors, or the normal shipping and maritime activities in the Port of Charleston.
Any person violating the provisions of this section is guilty of a misdemeanor and, upon conviction, must be fined not more than five hundred dollars or imprisoned for not more than ninety days, or both.
Section 50-11-990. Anyone hunting or trespassing upon any land designated as a sanctuary under the provisions of this article must be fined for each offense not less than one hundred dollars nor more than two hundred dollars or imprisoned for not more than thirty days.
Article 6
Special Depredation Permits, Collection
Permits, Closing Seasons, Special Seasons
Section 50-11-1050. Where wildlife is destroying property, the department, upon the request of the property owner, may issue a permit authorizing the property owner, under the supervision of the department, to take action necessary to remove the destructive wildlife from his property.
Section 50-11-1060. Any person desiring to put out poison on lands belonging to such person for the purpose of poisoning predatory animals shall first obtain a permit from the department and publish the dates the poison will be put out and describe the areas where it will be placed by one notice in a newspaper published in the county in which the lands are situate. Poison may not be put out on lands in this State otherwise. Any person violating the provisions of this section is guilty of a misdemeanor and is subject to a fine of not less than twenty-five dollars nor more than one hundred dollars or imprisonment of not less than ten days nor more than thirty days.
Section 50-11-1070. Bobcats may be killed by officers of the law and by landowners upon their holdings without license at any time.
Section 50-11-1080. Whenever it appears that coyotes are destroying birds, poultry, pigs, lambs, or other property in any county in this State or there is an apparent epidemic of rabies in any county, the department, upon the written request of a majority of the legislative delegation of any such county, shall declare an open season on coyotes, with the use of firearms, in the county suffering from the destruction and for such time as the delegation may consider desirable.
Section 50-11-1090. The department has the authority during any season of the year to permit the taking of any game animal and prescribe the method by which they may be taken when they become so numerous that they cause excessive damage to crops and property. Any animal taken under these conditions is under the supervision of the department. Any deer killed under these conditions must be given to eleemosynary institutions.
Section 50-11-1105. The department may declare a closed season for not over ten days at any one time in any area in the State when it appears on account of abnormal conditions that deer or other game cannot protect themselves. The department shall give notice of the closed season so declared by publication in at least two daily newspapers and in a newspaper of the county or counties in which the closed season is declared if the county has a newspaper, stating the length or period of the closed season. Any person found hunting with firearms, bows and arrows, or other game-taking devices, or dog within the restricted territory during a closed season so declared is guilty of a violation of the provisions of this section, regardless of whether he has or has not killed or taken any game. The penalty for a violation of the provisions of this section is a fine of not less than one hundred dollars nor more than two hundred dollars or imprisonment for not less than thirty days.
Section 50-11-1110. When in any county of the State there exist abnormal conditions that might affect the supply of game or there is an abnormal scarcity of game, the department, upon the written request of a majority of the legislative delegation, including the Senator, from such county, may shorten or close the open season for hunting in any such county. The department shall give notice of the closed or shortened season by publication in at least two daily newspapers and in a newspaper of the county in which the closed or shortened season is declared, stating the length of the closed or shortened season. Any person found hunting with gun or dog within the restricted territory during a closed season so declared, is guilty of a violation of the provisions of this section, regardless of whether he has killed any game or not. The penalty for violation of the provisions of this section is a fine of not less than twenty-five dollars nor more than one hundred dollars or imprisonment for not less than thirty days.
Section 50-11-1120. Whenever it appears that foxes are destroying birds, poultry, pigs, lambs, or other property in any county in this State or there is an apparent epidemic of rabies in any county, the department, upon the written request of a majority of the legislative delegation of any such county, shall declare an open season on foxes, with the use of firearms, in the county suffering from the destruction and for so long as the delegation considers desirable.
Section 50-11-1130. Raccoons and squirrels may be killed by owners of property from July fifteenth to the regular open season on them if these animals are destroying crops.
Section 50-11-1140. The United States Fish and Wildlife Service may allow the hunting of antlered and antlerless deer by those holding proper hunting licenses of this State on any sea island within any federally owned or controlled game reserve, national park, or game refuge during the open season for deer hunting under the laws of this State, whenever the officials of the United States Fish and Wildlife Service determine that the deer population of the island exceeds that which can properly maintain itself on any island. The United States Fish and Wildlife Service shall notify the department, in writing, at least ten days prior to allowing such hunting, of the opening and shall also advertise it at least once in a newspaper of general circulation in the coastal area of the State at least one week before any hunting is permitted.
Section 50-11-1150. When directed by the department, its employees may trap, by the use of steel or other traps, fox, wildcat, bobcat, wolf, coyote, skunk, raccoons, and any other predatory animals on any lands owned by the State or any of its boards, commissions, officers, institutions, or agencies and on cooperative wildlife management areas within the United States Forest Service lands.
Section 50-11-1160. The employees of the United States Fish and Wildlife Service and those employees of the United States or the agencies thereof in charge of any national park, game reserve, or game refuge also have the right to trap predatory animals within the confines of such national park, game reserve, or game refuge.
Section 50-11-1170. In order to more effectively control predatory animals, the employees of the department shall cooperate with the employees of the United States and its agencies in trapping programs and may accept aid and advice from federal employees.
Section 50-11-1180. For purposes of this section:
(a) `Take' means to harass, hunt, capture, or kill.
(b) `Protected wildlife' means any wildlife, part, product, egg, offspring nest, dead body, or part thereof which is managed or protected or the taking of which is specifically regulated by the department.
Permits may be granted by the department to any properly accredited competent person permitting him to collect protected wildlife for strictly scientific or propagating purposes only. No permit is required for the collecting or taking of nonprotected wildlife. Applications for a permit must be made to the department which shall investigate the applicant and the project or program for which the collection is to be made. The application must be accompanied by a payment of a ten-dollar fee to cover the cost of the examination and the issuing of the permit. If the department considers the applicant to be qualified and the program or project to be necessary or desirable, it shall issue a permit which expires on December thirty-first of the year in which it is issued. Permits may be renewed for one year upon application and the payment of a ten-dollar renewal fee if the department determines the applicant and the program or project is still qualified. Permits are not transferable but any student assistant working under the direct supervision of the permittee in collecting activities may participate under the permit. All collecting or taking must be conducted so as to adhere to recognized scientific methods. Wherever practicable, data, results, and specimens must be made available to the public upon request. The permittee shall submit a report at the end of the permit period of the specimens collection and of other information as may be included on the report form, which must be furnished by the department. Collecting permits for endangered species must be issued only in accordance with Section 50-15-50. The provisions of Section 50-17-70 are not superseded by the provisions of this section.
Any person violating the provisions of this section is guilty of a misdemeanor and, upon conviction, must be fined in an amount of not less than twenty-five dollars nor more than one hundred dollars or imprisoned for a term not to exceed thirty days and any permit issued to that person is revoked.
Article 7
Shooting Preserves and Pen-Raised Quail
Section 50-11-1200. The department may grant operating licenses for shooting preserves which are privately owned and operated under the terms and provisions as provided in this article. Shooting preserves may not be established for the purpose of extending the regular hunting seasons for native species.
Section 50-11-1210. No new preserve may be licensed by the department without the approval of the majority of the legislative delegation of the county in which such preserve is to be located.
Section 50-11-1220. The annual fee for obtaining a shooting preserve operator's license is two hundred dollars for the first one hundred acres of shooting preserve area, plus fifty dollars for each additional one hundred acres or part thereof.
Section 50-11-1240. In order to be licensed as a shooting preserve operator, the operator must own or lease a minimum of one hundred contiguous acres, including water areas. The preserve is restricted to not more than one thousand, five hundred contiguous acres. Proof of ownership or leasehold interest and accurate maps or plats identifying the proposed area must accompany all applications. Shooting preserves may be approved by the department to release pen-raised turkeys but those preserves are restricted to not less than ten thousand contiguous acres owned by the operator. Shooting preserves approved by the department to release pen-raised turkeys must apply for a permit annually and pay a fee of ten thousand dollars in lieu of the fees required by Section 50-11-1220. Nonresident big game permits are not required on those specially licensed shooting preserves.
Section 50-11-1250. Shooting preserve operators shall maintain a clearly defined boundary on which signs designating the area as a shooting preserve must be posted at intervals of one hundred fifty feet or less. Construction of a fence, as prescribed by the department, along the boundaries of the preserve may be required.
Section 50-11-1260. All state residents who hunt or shoot on shooting preserves are required to have appropriate hunting licenses and permits in accordance with wildlife laws and regulations. Nonresidents must possess a regular nonresident license and all applicable permits. When shooting a species for which the preserve is licensed a special nonresident shooting preserve permit may be used.
Section 50-11-1270. Legal shooting preserve species are:
(1) pen-raised bobwhite quail, pheasants, Chukars, and other species designated by the department; and
(2) pen-raised mallards that conform to United States Fish and Wildlife Service standards and regulations.
Section 50-11-1280. No shooting preserve may be licensed to release pen-raised ducks in Game Zones 7 and 9.
Section 50-11-1290. The shooting season is a consecutive six-month period, beginning October first and ending the following April first.
Section 50-11-1300. There is no bag limit on species designated as shooting preserve species.
Section 50-11-1330. All harvested game must be tagged before removal from a shooting preserve and the tags must remain affixed until the game is prepared for consumption. If species of game are packaged in bundles one tag is sufficient for the bundle, but the number of carcasses in the bundle must be recorded on each tag.
Section 50-11-1340. The department shall furnish no game for the stocking of any preserve provided for by this article.
Section 50-11-1350. A licensed shooting preserve operator may apply to the department for a permit to operate a quail call pen trap for the purpose of recovering any quail that are not killed. Bird dog field trials sanctioned by nationally recognized field trial associations may apply for a special field trial permit which provides for the release and shooting of designated species outside of the normal season and during the field trial event only.
Section 50-11-1360. All animals held in captivity at a shooting preserve must be confined in cages constructed of material of a strength appropriate for that particular species. The cage facility must be structurally sound and must be maintained in good repair to protect the animals from injury, to minimize the possibility of escape, and to prevent entrance by other animals.
Section 50-11-1370. Proper care must be given to all penned animals to assure:
(1) Clean water is provided as necessary.
(2) Food is wholesome, palatable, and free from contamination.
(3) Animals are provided adequate cover and bedding to assure the safety of the animals during adverse environmental conditions.
(4) Excreta are removed from cages or enclosures as often as necessary to prevent contamination of the animals.
(5) An effective program for the control of insects, parasites, and avian and mammalian pests is established and maintained.
(6) Animals with a propensity to fight or which are otherwise incompatible are kept segregated.
Section 50-11-1380. Vehicles used in transporting animals must be mechanically sound and equipped to provide adequate fresh air, when moving or stationary.
Section 50-11-1390. Each shooting preserve operator shall maintain a registration book listing names, addresses, and hunting license numbers of all hunters, the dates on which they hunted, the amount and types of game and designated shooting preserve species harvested and tag numbers affixed to each carcass or container. The operator also shall maintain a record of the number of each species of game raised or purchased and the number released and other records which the department may designate. The records may be inspected by an authorized member of the department or a person it may designate or employ at any time. Operators must furnish the department a copy of the records within sixty days after the end of the hunting season on the preserve.
Section 50-11-1400. The violation of any of the sections of this article is a misdemeanor. The manager, owner, or licensee, or any of them, of any shooting preserve provided for in this article is responsible for any violation of this article and, upon conviction, must be punished by a fine of not less than one hundred dollars nor more than two hundred dollars or imprisoned for not less than fifteen days nor more than thirty days and the license of the preserve must be revoked, within the discretion of the department. The preserve is not eligible for another license during the calendar year, nor thereafter, except on terms and conditions prescribed by the department.
Section 50-11-1410. The operation of a shooting preserve as provided for in this article without a license is a misdemeanor and, upon conviction, the operator must be fined not less than two hundred dollars nor more than five hundred dollars or be imprisoned not less than thirty days nor more than six months.
Section 50-11-1420. A `pen-raised quail' is one which has been hatched from an egg laid by a quail and subsequently wholly raised and confined in a pen or coop.
Section 50-11-1430. With the approval of the department, any person may engage in the business of propagating pen-raised quail for commercial purposes upon compliance with this article.
Section 50-11-1440. A commercial quail breeder's license must first be obtained from the department. The license may be purchased at any time and is good only for the calendar year in which issued. The license fee is five dollars, and each license must be numbered by the department.
Section 50-11-1450. The keeper of a hotel, restaurant, boardinghouse, or club may sell pen-raised quail for food to be consumed on the premises and is not required to hold a license therefor.
Section 50-11-1460. The department, when it has evidence that any breeder is violating the intent of this article and is not cooperating with the department in a desirable manner, may revoke the breeder's license and may refuse to issue the license and seals or tags to the breeder. Where a person has a record of game violations, the department may refuse to issue the breeder's license.
Section 50-11-1470. Any person complying with this article may sell live pen-raised quail for propagating purposes or may sell the carcasses of the pen-raised quail for any purpose, including sale for food.
Section 50-11-1480. Before being offered for sale other than alive or for propagation purposes or shipped within the State, all packages or bags of pen-raised quail carcasses must be labeled, marked, or stamped, in such a way so as to give the following information: the hatchery in which the quail is produced, its location, and address. This information must not be removed from the package or bag of quail except by the ultimate consumer. In addition, the hatchery is required to keep accurate records of all sales of pen-raised quail and to make these records available for inspection upon request by the department.
Section 50-11-1490. When any pen-raised quail is sold or shipped into this State, the shipper or seller shall furnish the department with a copy of the invoice showing the number of the quail so shipped or sold and to whom the quail was shipped or sold. Any pen-raised quail sold or shipped in violation of this section is subject to confiscation by the department.
Section 50-11-1500. All pen-raised quail offered for sale must be killed otherwise than by shooting.
Section 50-11-1510. It is unlawful to trap wild quail for the purpose of obtaining birds to be pen-raised or to obtain wild quail eggs to be pen-raised or hatched.
Section 50-11-1530. Any person violating any of the provisions of this article is guilty of a misdemeanor and, upon conviction, must be punished by a fine of two hundred dollars or thirty days' imprisonment for each offense and shall forfeit his license and tags and may not secure any additional license during that year.
Article 8
Shipping, Storage, Sale, Or Transportation
of Wildlife
Section 50-11-1700. It is unlawful to keep any of the birds or animals forbidden to be sold by the terms of Sections 50-11-1910 and 50-11-1940 in cold storage or refrigerating plants, except in a private dwelling, unless the bird or animal in cold storage, or the package containing it, bears the name and address, the serial number, and the class of the hunting license of the owner of the bird or animal. Any person violating this section must be fined not less than fifty dollars nor more than one hundred dollars or imprisoned one day for each dollar fined or unpaid, either or both.
Section 50-11-1710. It is unlawful for any transportation company to receive for shipment any of the game birds or animals of the State, except in season and unless the package containing them is so labeled as to show the consignor or consignee and the number and kind of birds or animals.
Section 50-11-1720. No person shall knowingly receive for transportation beyond the limits of this State, so transport, cause to be so transported, or have in his possession with the intent to so transport or secure transportation any partridge, grouse, wild turkey, snipe, woodcock, or other game bird or game animal which has been killed or captured in this State except as permitted by Sections 50-1-110, 50-11-1710, and 50-11-1730, and the receipt, transportation, or possession or the causing or securing of transportation of each bird or game animal so killed or captured constitutes a separate offense. The provisions of this section do not apply to common carriers into whose possession birds or game come in the regular course of their business for transportation while they are in transit through the State from any place without the State. Nothing herein prohibits persons from having in their possession for the purpose of domestication and propagation any birds or animals.
Section 50-11-1730. It is lawful for any landowner or licensee to ship or carry beyond the limits of this State during any one week not over the bag limit for one day, as provided by law, of any domestic game birds or animals, when he has conformed to the regulations prescribed by the department under this section. Any landowner or licensee desiring to ship domestic game birds or animals beyond the limits of the State during the open season for such game birds or animals shall make application to the department, giving location of property and class and serial number of license held, and, upon the application, if it appears to the department that the shipment is for private, personal, or charitable use and not for sale of the game birds or animals, it may issue to the applicant a tag or label for use in shipping the game birds or animals. The tag or label must be of a design and in a form the department prescribes. Any person shipping or receiving for shipment beyond the limits of the State any domestic game birds or animals in violation of the provisions of this section is liable to a fine of not less than fifty dollars nor more than one hundred dollars or imprisonment for thirty days for each offense.
Section 50-11-1740. It is lawful for a person to ship during any one week not over the bag limit for two days, as provided by law, of any domestic game birds or animals to any private address in this State when he has conformed to the regulations prescribed by the department under Section 50-11-1750.
Section 50-11-1750. Any person so desiring to ship domestic game birds or animals during the open season for these game birds or animals or within five days after the closing of the season shall make application to the department and upon the application, if it appears that the shipment is for private and personal use and not for the sale of the game birds or animals, the department shall issue to the applicant a tag or label for use in shipping the game birds or animals. The label must be of a design and in a form the department prescribes.
Section 50-11-1760. It is unlawful to bring a coyote into the State in any manner, except one brought into the State and kept in captivity for exhibition purposes, or to release a coyote within the State. Any violation of this section is punishable by imprisonment for not more than one year or by a fine not exceeding five hundred dollars.
It is lawful for any person to trap or kill any coyote in this State at any time, but a permit must be obtained from the department before trapping coyotes outside the trap distance limits as prescribed in Section 50-11-2410.
Section 50-11-1765. It is unlawful to sell live wolves or coyotes within the State or to ship or import live wolves or coyotes into this State, except for exhibition or scientific purposes upon the approval of the department as provided by regulations promulgated by the department. A person may not have a live wolf or coyote in his possession without a permit issued by the department.
Section 50-11-1770. It is lawful to sell and ship live foxes within the State.
Section 50-11-1910. It is unlawful to buy or sell, offer for sale, barter, or have in possession for sale any deer or part of a deer except the hide of legally taken deer. Hides from legally taken deer may be bought, sold, or bartered during the earliest open season for the taking of deer and for thirty calendar days following the end of the latest deer season. For a violation of this section, upon conviction, the guilty party for a first offense must be fined not less than one hundred dollars nor more than three hundred dollars or be imprisoned for not more than thirty days; for a second offense within three years of the date of conviction for a first offense, the person must be fined not less than three hundred dollars nor more than five hundred dollars or be imprisoned for not more than thirty days; for a third offense within three years of the date of conviction for a first offense, the person must be fined one thousand dollars or be imprisoned for not more than sixty days.
Section 50-11-1920. The proprietor of any eating establishment who sells or offers for sale venison is guilty of a misdemeanor and, upon conviction, must be punished as for a violation of Section 50-11-1910. The provisions of this section do not apply to private functions.
Section 50-11-1930. It is unlawful to buy or sell, expose for sale, or have in possession for sale or barter any willet or dove.
Section 50-11-1940. It is unlawful for any person to buy or barter for sale any wild quail within this State. Any person violating this section must be fined twenty-five dollars for each quail so bought or sold or imprisoned for not more than thirty days for each quail so bought or sold.
Section 50-11-1950. It is lawful for anyone to own, possess, control, sell, or otherwise dispose of pheasant eggs within this State or to sell or otherwise dispose of the eggs beyond the borders of the State, under regulations promulgated by the department.
Article 9
Field Trials
Section 50-11-2100. The department shall promulgate regulations to permit and regulate field trials during the year including the closed season. A person violating the provisions of these regulations is guilty of a misdemeanor and, upon conviction, must be fined not more than two hundred dollars or imprisoned for not more than thirty days for each offense.
Section 50-11-2110. In Game Zone 9 field trials may be conducted from January first through January fifteenth of each year. If a permit is required to sponsor the field trial, the permit must be issued by the department upon written request by the organized sponsoring association's designated officer.
Article 10
Wildlife Management Areas
Section 50-11-2200. It is unlawful to hunt deer on land designated as wildlife management areas within three hundred yards of a residence. Anyone violating the provisions of this section is guilty of a misdemeanor and, upon conviction, must be fined not more than two hundred dollars or imprisoned not more than thirty days.
Section 50-11-2210. The abuse of wildlife management area land and improvements thereon is unlawful. Any person who damages or destroys wildlife management area land or improvements on them including, but not limited to, roads, vegetation, buildings, structures, or fences or leaves refuse, trash, or other debris on the property or sets, makes, or builds a fire except in an area specially designated by the department or landowner as a campfire area is guilty of a misdemeanor and, upon conviction, must be fined two hundred dollars and be required to make restitution to the landowner in an amount determined by the court to be necessary to repair, rebuild, restore, or clean up the property to its condition before the abuse occurred. Any person failing to make restitution within the time limit set by the court shall serve a mandatory ten-day sentence in the county jail which may not be suspended in whole or in part. The provisions of this section are in addition to other criminal penalties.
Section 50-11-2220. Any person violating the provisions of Section 50-11-2210, in addition to the penalties prescribed, shall lose the privileges of entering onto wildlife management area land for one year. Any person convicted twice within a three-year period of a violation of Section 50-11-2210 or within the same period of time convicted twice of unlawful commercial hunting or fishing on wildlife management area lands, in addition to the penalties prescribed in Section 50-11-2210, is forever barred from obtaining a Wildlife Management Area permit and shall lose his right to hunt and fish within the State for one year. The provisions of this section are in addition to other criminal penalties.
Section 50-11-2230. Before any person may lease property to the Wildlife Management Area Program, there must be either public or private access to the property available for use by individuals hunting the property under the program during the term of the lease.
Section 50-11-2240. Hunting for deer in all department game management areas in Game Zone 5 is subject to regulation as provided for in Game Zone 4.
Article 11
Operation Game Thief
Section 50-11-2300. There is created an Operation Game Thief Program to be funded by:
(1) monies authorized from the county game fund of the state treasury not to exceed thirty thousand dollars annually;
(2) monies received from donations to the fund, which must be used for general program purposes. The donor may not specify the purposes for which the donation must be used;
(3) monies appropriated by the General Assembly for the purposes provided in this article.
Section 50-11-2310. Funds from the Operation Game Thief Program may be expended only for the following purposes:
(1) the financing of reward payments to persons other than law enforcement officers, department personnel, and members of their immediate families responsible for information leading to the arrest of any persons for unlawfully taking, wounding or killing, possessing, transporting, or selling wildlife and attendant acts of vandalism. The board shall establish the schedule of rewards to be paid for information received and payment must be made from funds available for this purpose;
(2) the financing of a statewide telephone reporting system under the name of `Operation Game Thief' established under the direction of the board;
(3) the promotion of public recognition and awareness of the Operation Game Thief Program.
Section 50-11-2320. The Operation Game Thief Program funds must be expended in conformity with the laws of the State, except that any monies appropriated by the General Assembly or received from donations must be used before monies from any county game fund are used. Balances remaining at the end of the fiscal year are exempt from the provisions of law relating to lapsing of appropriations.
Article 12
Trapping, Furbearing Animals, Regulation of
Dealers, Buyers, Processors, and Transporters of
Furs or Similar Products or Articles
Section 50-11-2400. For the purpose of this article:
(a) `furbearing animal' includes red and gray fox, raccoon, opossum, muskrat, mink, skunk, otter, bobcat, weasel, or beaver;
(b) `fur buyer' means any person who purchases any whole furbearing animal, raw or green furs, pelts, or hides;
(c) `take' means to shoot, wound, kill, trap, capture, or collect, or attempt to shoot, wound, kill, trap, capture, or collect;
(d) `commercial purposes' means taking or possessing any fur, pelt, hide, or whole animal for exchange, sale, trade, or barter and taking or possessing more than five furs, pelts, hides, or whole animals is taking for commercial purposes;
(e) `trapper' means any person who takes or attempts to take animals by trapping;
(f) `trap' means any device, other than a weapon, designed or constructed for taking animals;
(g) `foot-hold trap' means a steel-jawed, spring-loaded device designed to capture the animal by the foot;
(h) `live trap' means any box or cage designed for capturing and holding any animal unharmed;
(i) `processor' means any person engaged in tanning or dressing furs, pelts, or hides of furbearing animals for commercial purposes;
(j) `transfer' includes selling, bartering, exchanging, and transporting.
Section 50-11-2410. It is unlawful for any person to sell, make, or use a foot-hold trap or any like device within this State. This prohibition does not apply to foot-hold traps of a size number three or smaller made, sold, or used by the owner, leaseholder, or owner's employee for the protection of property when the devices are set within two hundred yards of the person's residence or within twenty-five yards of any poultry house, nor does this section apply to merchants who have such traps for sale outside this State.
The use of body gripping traps of the Conibear type may be used without bait or scents for vertical water sets and vertical slide sets only.
It is lawful to use foot-hold traps of a size number two or smaller for land sets and a size number three or smaller for water sets in Game Zones 1, 2, 3, 4, 6, 7, 10, and 11 inclusive. The use of foot-hold traps in Game Zones 5, 8, and 9 may be allowed with the approval of the majority of the legislative delegation for the game zone involved. The legislative delegations for any game zone may elect to restrict the use of the foot-hold trap and the Conibear trap, except when it is used as permitted in the preceding paragraph, by a majority vote. A petition signed by the members allows or prohibits the use of foot-hold traps. The petition must be forwarded to the department. The initiative for the petition must originate with the members of the delegations for the respective game zone. The approval or repeal remains in effect for no less than one year.
Section 50-11-2415. It is lawful to use rubber padded steel foot-hold traps of a size number two or smaller for land sets for the capture of live fox in Game Zone 9.
Any other furbearing animal so captured must be immediately released.
Section 50-11-2420. In addition to a valid state hunting license, a commercial fur license is required of all persons who sell or take by any means, except trapping, furbearing animals for commercial purposes and all persons who trap or who attempt to trap any furbearing animals. The license is issued by the department at a cost of ten dollars for residents and one hundred dollars for nonresidents. The license is valid for the fiscal year for which issued. Any person taking animals under authority of a commercial fur license shall carry the license on his person. Any person having in his possession more than five furbearing animals or pelts shall have a valid commercial fur license. The provisions of this section do not apply to a processor, manufacturer, or retailer.
Section 50-11-2430. Any person engaged in the act of trapping shall have proof that he is the owner of the property on which the traps or devices are set or carry on his person written permission to use the property for trapping.
Section 50-11-2440. A trapper shall visit his traps daily and remove any animal caught but no trapper may visit any trap at night and no trap may be set `in the open' or in paths, roadways, or runways commonly used by persons or domestic animals.
Section 50-11-2445. It is unlawful for any person, other than the owner of the trap to remove any lawfully trapped wildlife from any legally set trap. Any person violating the provisions of this section is guilty of a misdemeanor and, upon conviction, must be fined not less than fifty dollars nor more than two hundred dollars or imprisoned for no more than thirty days.
Section 50-11-2450. Any person required to be licensed under Section 50-11-2420 shall report to the department by April fifteenth of each year the number and type of furbearing animals taken, sold, or shipped, together with the names and addresses of persons to whom sold or shipped using forms as the department may prescribe. Any person failing to report by April fifteenth of each year shall, on the second offense, be denied a license for the following fiscal year.
Section 50-11-2460. The following traps are allowed for trapping in accordance with an approved commercial fur license:
(1) body gripping traps (generally known by the brand name `Conibear') as provided in Section 50-11-2410;
(2) live traps;
(3) foot-hold traps as provided in Section 50-11-2410.
All other traps, including `deadfall' traps, are unlawful unless expressly authorized by the department by regulation.
All traps must bear the owner's name and address either directly thereon or by an attached identification tag.
Section 50-11-2470. Any person other than a retailer of finished fur or manufacturer of finished furs, pelts, hides, similar articles, or parts of them who buys furs, pelts, hides, whole furbearing animals, similar articles, or parts of them in this State is required to have a fur buyer's license. The license is issued by the department at a cost of one hundred dollars for residents and two hundred dollars for nonresidents. The license is valid for the fiscal year in which issued. Any person transacting business under authority of such a license shall carry that license on his person.
Section 50-11-2475. Any fur processor engaged in processing the hides of furbearing animals is required to obtain a processor's license. The license is issued by the department at a cost of five hundred dollars. The license is valid for the fiscal year in which it is issued. A taxidermist who possesses any fur, pelt, hide, or whole furbearing animal legally owned by another person, which he is temporarily holding for the purpose of processing, is not required to obtain this license. All processors shall keep a daily register showing the name and address of each person from whom the fur, pelt, hide, or whole furbearing animal is received, the number of each species, and the date and place of origin. All processors shall report the information to the department not later than June thirtieth of each year.
Section 50-11-2480. The following persons are not required to obtain the license provided for in Section 50-11-2470:
(a) a person who acquires not more than five furs, pelts, hides, or whole animals for his own personal use during one season and not for barter, exchange, or sale;
(b) a person licensed under Section 50-11-2475 as a processor;
(c) a taxidermist who possesses any fur, pelt, hide, or whole furbearing animal legally owned by another person which he is temporarily holding solely for the purposes of processing;
(d) a person acquiring furbearing animal carcasses without hides.
Section 50-11-2490. All fur dealers, buyers, and processors, other than retailers, shall keep a daily register on forms provided by the department showing the name and address of each person from whom any furs are purchased, the number of his commercial fur license, and the number and types of furs, pelts, orhides purchased. Not later than the tenth day of each month, all dealers, buyers, and processors shall furnish the department all of the daily register sheets for the previous month. Any fur, pelt, or hide not properly tagged or logged when examined by the department is declared contraband and must be confiscated by the department.
Section 50-11-2500. Any person desiring to hold fur more than thirty days after the end of the regular season for taking furbearers shall apply to the department for a permit at no cost to hold the fur. The applications for the permits must contain an itemized list of furs to be held along with their fur tag numbers. The possession of any raw or green fur, pelt, or hide of any furbearing animal more than thirty days after the end of the regular season for taking furbearers other than provided for in this section is illegal.
Section 50-11-2510. Any person required to be licensed pursuant to Section 50-11-2420 who takes any furbearing animal must tag the fur, pelt, hide, or whole furbearing animal at the time the fur is removed from the carcass or in the case of a whole animal at the time the whole animal is stored or before it is sold, whichever occurs first. The tags must be sold by the department according to the following fee schedule:
bobcat $2.00
otter 2.00
mink 1.00
gray fox 1.00
red fox 1.00
weasel 1.00
beaver .25
raccoon .50
skunk .25
muskrat .25
opossum .25
The tags must be of a type and size the department prescribes. The tags must be securely attached and may not be removed until the time of processing. Any fur, pelt, hide, or whole animal which does not have a tag attached as required by this section or that is unlawfully tagged is declared contraband and must be confiscated. Unused tags must be returned to the department by April fifteenth of each year. Full refund must be given for unused tags returned by April fifteenth. Tags may only be used for the specific species for which they are issued and they must be numbered consecutively. These tags are nontransferable and may not be altered in any manner. The department may limit the number of tags for each species and the area in which they may be used. Furbearing animals taken live to be sold as live animals are not required to be tagged.
Section 50-11-2515. Except as otherwise permitted in this article, it is unlawful to possess, acquire, or transfer any untagged fur, pelt, hide, or whole animal. Any person convicted of a violation of this section is guilty of a misdemeanor and must be punished as provided in Section 50-11-2560. Each fur, pelt, hide, or whole animal found untagged or unlawfully tagged constitutes a separate offense.
Section 50-11-2520. All enforcement officers and any other employee of the department designated by the board, at any and all reasonable hours, may inspect the business premises and records required by this article of any person licensed under this article to ensure compliance.
The license of any licensee who refuses to allow promptly an inspection authorized under this section is subject to immediate revocation.
Section 50-11-2530. The department may confiscate all traps and devices, furs, pelts, hides, and whole animals which are illegally possessed, tagged, or used. Where the department has no storage facilities for perishable items such as furs, it may sell them at a reasonable price and hold the proceeds pending the final outcome of the case. Upon conviction of the owner, any traps, devices, furs, pelts, hides, or whole animals being held may be disposed of as determined advisable by the department and any proceeds resulting from the sale must be used for the propagation and protection of game.
Section 50-11-2540. It is lawful to trap furbearing animals for commercial purposes from January first to March first of each year. The trapping season may not exceed sixty days each year under any circumstances. It is unlawful to trap any other times unless authorized by the department. It is lawful to take furbearing animals by other lawful means during the general open hunting seasons established therefor.
Section 50-11-2550. Any person shipping or transporting or attempting to ship or transport untanned furs, pelts, hides, or whole furbearing animals out of this State shall first obtain a permit from the department. The department may designate an enforcement officer or other representative in each county to inspect the shipment and issue the permit.
Section 50-11-2560. Any person violating the provisions of Section 50-11-2410, 50-11-2420, 50-11-2470, 50-11-2475, 50-11-2490, or 50-11-2515 is guilty of a misdemeanor and, upon conviction, must be fined not less than three hundred dollars nor more than one thousand dollars, or imprisoned for not more than sixty days for each violation. In addition, upon conviction, the department shall suspend the fur buyer's license for one year from the date of the conviction.
Section 50-11-2565. Any person violating the provisions of this article unless otherwise specified in Section 50-11-2560 is guilty of a misdemeanor and, upon conviction, must be fined not less than fifty dollars nor more than two hundred dollars, or imprisoned for not more than thirty days for each violation.
Section 50-11-2570. The department may issue special permits, at no cost to the applicant, for the taking, capturing, or transportation of any furbearing animal or of any other game animal which is destroying or damaging private or public property, timber, or growing crops so as to be a nuisance or for scientific or research purposes.
Section 50-11-2575. The department may issue special depredation permits, at no cost to the applicant, to allow the use of snares for beavers in water-sets.
Section 50-11-2580. No provisions of Sections 50-11-2400, 50-11-2410, 50-11-2420, 50-11-2450, 50-11-2460, 50-11-2470, 50-11-2510, 50-11-2520, 50-11-2530, 50-11-2540, 50-11-2550, 50-11-2560 shall apply to any person who owns a foxhunting-enclosed preserve or pup training facility where the foxes are not retained or marketed for fur utilization if such foxes are from a licensed commercial trapper in a live state. The department shall issue permits for the foxes at no cost to the owner of the preserve and shall require reports suitable to maintain adequate records of sales or transfers of the foxes."
Director, commission, and division changed to department or board; names revised
SECTION 1263. Chapter 13, Title 50 of the 1976 Code is amended to read:
"CHAPTER 13
Protection of Fish
Article 1
Restrictions on Fishing Generally
Section 50-13-10. The catching of game fish in all waters of the State shall be only with hook and line, fly rod, casting rod, pole and line and hand line. Not more than two of the above-mentioned devices may be used by any one individual while fishing.
Section 50-13-11. Notwithstanding the provisions of Section 50-13-10, any person fishing in a boat may use an unlimited number of lawful fishing devices so long as every other occupant of the boat who, if fishing would be required by law to have a fishing license, has in his possession a valid fishing license.
Section 50-13-20. Except as otherwise expressly provided, it shall be unlawful to catch and carry away from any artificial lake of an area of ten thousand acres or more within Game Zone No. 2 that has its dam site within such zone, from any of the tributaries upstream of any such lake for a distance of one mile above where the water ceases to flow or from Boyd's Mill Pond in Laurens County in Game Zone No. 2 any fish of any kind except by hook and line, which shall include poles, rod and reel and natural or artificial bait and no person shall use more than two poles at the same time. Any person violating any of the provisions of this section shall be guilty of a misdemeanor and shall be punished by a fine of not less than ten dollars nor more than one hundred dollars or by imprisonment of not less than ten days nor more than thirty days.
Section 50-13-60. The department shall declare a closed season for a period of not more than sixty days at any one time on fish in any stream in this State on the written recommendation of the Senator and at least one-half of the representatives from any county in which such stream may be situated. Any person who shall take fish from any such stream in this State during any such closed season shall, upon conviction, be fined not less than fifty dollars nor more than one hundred dollars or imprisoned for not less than thirty days.
Section 50-13-65. Notwithstanding the provisions of Section 50-13-60, in Game Zone 1 only, a stream may be closed for a period of one hundred fifty days under the same procedure as provided in Section 50-13-60 and any person convicted of unlawfully fishing during such closed season shall be fined as provided in Section 50-13-60.
Section 50-13-70. The department shall give notice of the closed season so declared by publication in at least two daily newspapers, including a newspaper in the county or counties in which the closed season is declared, if such counties have newspapers therein, stating the length of the period of such closed season.
Section 50-13-80. Any person found fishing with hook and line or in any other manner whatsoever within the restricted territory during a closed season so declared shall be prima facie guilty of violating the provisions of Section 50-13-60, regardless of whether he shall have caught any fish or not.
Section 50-13-90. There is hereby created a closed season for the fishing for or taking of trout from the fresh-water streams of this State, beginning the first day of October and terminating the first day of March of each year. The word `trout' as used in this section shall mean rainbow, brook, brown or other species of cold-water trout and shall not mean fresh-water bass.
Section 50-13-100. It shall be unlawful for any person during a closed season declared pursuant to Section 50-13-60 to have in his possession any trout taken from the fresh waters of this State. Any person found in possession of fresh-water trout during a closed season shall be presumed to have taken such trout from the fresh-water streams of this State.
Section 50-13-110. It shall be lawful for any person to fish for and catch trout in Game Zone No. 1 at any time except during the closed season therefor.
Section 50-13-120. There shall be no size limit on any fresh-water game fish caught in this State, nor on rainbow, brook, brown or other species of cold-water trout.
Section 50-13-190. As used in reference to fishing laws of this State, as they apply to Horry County, all waters in the county north of the bridge across the Inland Waterway at Nixon's Cross Roads, where State Highway No. 9 and U.S. Highway No. 17 intersect, shall be designated salt waters and those south of the bridge shall be designated fresh waters. The department shall erect and maintain appropriate signs on or near the bridge, marking the division of salt and fresh waters.
Section 50-13-200. Fishing in the nighttime is hereby prohibited in that portion of Four-Hole Swamp known as Bridge Lake, in Dorchester County, except during the season fixed by law for shad fishing. Anyone violating the provisions of this section shall be subject to a fine of not more than one hundred dollars or to a term of imprisonment of not more than thirty days.
Section 50-13-210. It is unlawful for a person in any one day to catch more than forty game fish; however, of the total creel limit:
(1) not more than ten of the total may be striped bass (Rockfish) or hybrid bass (striped bass-white bass) or a combination of them unless regulations promulgated by the department and adopted by the General Assembly by authority of Section 50-13-236 reflect otherwise;
(2) not more than ten of the total may be black bass (large mouth, small mouth, coosae) or a combination of them unless regulations promulgated by the department and adopted by the General Assembly by authority of Section 50-13-236 reflect otherwise;
(3) not more than ten of the total may be trout;
(4) not more than eight of the total may be walleye or sauger or a combination of them;
(5) not more than thirty of the total may be any game fish not specified.
Section 50-13-220. No more than five striped bass (rockfish) may be caught in any one day from:
(1) Broad River from the lock and dam of the Columbia Canal to its confluence with Lower Saluda River;
(2) Lower Saluda River from the Lake Murray Dam to its confluence with Broad River;
(3) Wateree River from the Lake Wateree Dam to its confluence with Congaree River;
(4) Congaree River from the confluence of Broad and Lower Saluda Rivers to its confluence with Wateree River;
(5) Lake Marion, Lake Moultrie, and the Diversion Canal;
(6) the Tailrace Canal from Pinopolis Dam to Cooper River;
(7) the east and west branches of Cooper River downstream to the U.S. Highway 17 bridge;
(8) Wando River;
(9) the Rediversion Canal;
(10) Santee River from the Lake Marion Dam downstream to the Intercoastal Waterway.
This section applies to all tributaries, streams, creeks, or other watercourses connected to the waters described above.
Section 50-13-230. The department may increase the limits on striped bass or rockfish provided in Section 50-13-220 in these restricted waters and may make such restrictions applicable to other bodies of water when such waters are stocked with striped bass or rockfish by the Department.
Section 50-13-235. It is unlawful to take or possess striped bass (rockfish) less than eighteen inches in Lake Marion and Moultrie, the Congaree River, the Wateree River northward to the Lake Wateree Dam, the Saluda River northward to the Lake Murray Dam and the Santee River southward to the saltwater-freshwater dividing line.
Section 50-13-236. The department may establish the daily creel limits and size limits on Lake Murray and on all waters of the Saluda River lying between the Lake Greenwood Dam (Buzzard's Roost Dam) and Lake Murray for striped bass (Rockfish) and Black Bass by regulations promulgated and adopted in accordance with Article I, Chapter 23 of Title 1. No creel or size limits may be set by emergency regulations. A person taking striped bass or black bass exceeding the limits set by the department is guilty of a misdemeanor and, upon conviction, must be punished as provided in Section 50-13-285.
Section 50-13-240. Whenever the limits provided in Sections 50-13-210 to 50-13-230 and 50-13-300 are in conflict with a reciprocal agreement with another state, such limits shall not apply.
Section 50-13-250. Not more than ten trout may be taken from the freshwater streams of the State in any one day except for that portion of Matthews Creek and Middle Saluda River which lies in Greenville County, Eastatoe River in Pickens County, Whitewater River in Oconee County, and Lake Jocassee in Oconee and Pickens Counties. The department may promulgate regulations to establish creel and possession limits, bait limitations, and for any other purposes to protect the trout fishery. As used in this section the word `trout' means rainbow, brook, brown, or other species of cold-water trout and does not mean freshwater bass.
Section 50-13-260. It shall be lawful for any enforcement officer to search any creel.
Section 50-13-270. When fishing in private ponds entirely segregated from other waters, creel limits shall not apply, if permission shall have been given by the owner of such pond to exceed statutory limits.
Section 50-13-280. It shall be unlawful for any person to have in his immediate possession or control more than the number of game fish authorized to be caught by one person in any one day; provided, that the provisions of this section shall not apply to any person traveling in a vehicle with not more than the number of game fish authorized to be caught by one person in any two days nor to any person who has fish stored in a freezer in any residence which is not used as or connected with a store, service station, eating establishment or any such similar commercial establishment.
Section 50-13-285. Any person violating the provisions of Sections 50-13-210, 50-13-220, 50-13-250, or 50-13-280 must upon conviction for a first offense of any of the sections be fined not less than thirty dollars nor more than two hundred dollars or imprisoned for not more than thirty days and for a subsequent offense of any of the sections be fined not less than three hundred dollars nor more than five hundred dollars or imprisoned for not more than sixty days, or both. Subsequent offense is an offense against any of the sections and not any one in particular. But only those offenses of any of the sections which occurred within a period of two years, including and immediately preceding the date of the last offense shall constitute prior offenses within the meaning of this section.
Section 50-13-320. (1) It shall be unlawful for any person to net, trap, harpoon, lasso or molest genus Delphinus or genus Tursiops in the waters of Beaufort County.
(2) Any person violating the provisions of this section is guilty of a misdemeanor and, upon conviction, shall be punished by a fine of not more than one hundred dollars or imprisonment for not more than thirty days.
Section 50-13-350. Whenever anyone shall have made or created an artificial pond on his own land and shall put therein any fish or the eggs of any fish or oysters, for the purpose of breeding and cultivating fish or oysters, and shall give notice thereof, by written or printed handbills, put up in public places near such pond, any person who shall thereafter enter in or about such pond for the purpose of fishing, shall catch or take away any fish or oysters therefrom or shall be guilty of committing any trespass by using any means to destroy or injure the fish or oysters raised or collected in such pond or by breaking the dam for the purpose of permitting the fish or oysters to escape shall be guilty of a misdemeanor and shall be subject to a fine of not less than twenty dollars nor more than one hundred dollars or be imprisoned at the discretion of the court. Any such fine, if imposed, shall go one half to the informer and the other half to the person whose property shall have been injured. Nothing in this section shall be construed as applying to ponds used as water power for manufacturing purposes.
Section 50-13-360. It shall be unlawful for any person to shoot fish in any of the streams, lakes or rivers or their tributaries, both muddy and clear-water streams, inclusive, in the counties of Bamberg, Berkeley, Charleston and Dorchester at any time during the year.
Section 50-13-370. Nothing contained in the laws of this State for the protection of fish or which provide for a closed time in the creeks, streams and inland waters shall be construed to restrict or interfere in any manner with the United States Commissioner of Fish and Wildlife or his agents when fishing for fish of any kind in connection with the operations of any fish hatcheries, but the United States Commissioner of Fish and Wildlife and his duly authorized agents are accorded full and free right to conduct fish cultural operations and scientific investigations in the waters of this State and all fishing and other operations necessary therefor, in such manner and at such times as are considered necessary and proper by such Commissioner or his agents.
Section 50-13-380. It shall be unlawful to take or possess large-mouth bass less than twelve inches in length in Lake Robinson which is located in Chesterfield and Darlington Counties in Game Zones 5 and 8. Any person violating the provisions of this section is guilty of a misdemeanor and, upon conviction, shall be fined in an amount not to exceed one hundred dollars or imprisoned for a term not to exceed thirty days.
Article 3
Use of Nets, Seines, Traps, and Like Devices
Section 50-13-510. Persons owning private ponds in this State may catch fish therein with traps or nets for propagation purposes only after the issuance of a permit from the department. The department may issue such rules and regulations it considers necessary in connection with the issuance of such permit, the length of time that each permit will be of force, and the conditions on which each will be issued. The department shall have full power and authority to revoke such permits in its discretion. No permit shall be issued unless it be endorsed in writing by an enforcement officer in the county in which it is to be used.
Section 50-13-530. There shall be a closed time, of all the muddy streams, creeks and inland waters of the State from the setting of the sun each Saturday until the rising of the sun each Wednesday, during which time all seines, nets or other plans or devices for the stoppage or collecting of shad and herring, which obstruct any portion of any such stream, creek or inland waters, shall be removed from such creek, stream or inland waters.
Section 50-13-580. Should any game fish be taken by net or other nongame fishing device while fishing for fish other than game fish, they must be immediately returned to the water from whence they came. Any person violating the provisions of this section is guilty of a misdemeanor and, upon conviction, must be fined not less than fifty dollars nor more than two hundred dollars or imprisoned for not more than thirty days. Any equipment and devices used in committing the violation must be seized and disposed of as provided in Section 50-13-1196.
Section 50-13-610. Fish in Game Zone No. 1 shall be caught only with rod and reel, rod and line or pole and line, with single bait or lure in the hands of the operator, or by throwing when not more than one lure and line is used by the person throwing. But when a pole and line is used, the fisherman may use not exceeding three poles provided they all be used in his view, and he is not required to have them in his hands all of the time, and it shall not be unlawful for a person fishing with pole and line to have in his possession and use at intervals a rod and reel or rod and line.
Section 50-13-620. Any violation of any of the provisions of Sections 50-13-600 or 50-13-610 shall be punishable by a fine of not more than one hundred dollars nor less than ten dollars or by imprisonment for not more than thirty days.
Section 50-13-650. In Game Zone 3 it shall be unlawful to use nets or seines for catching shad in the Savannah River from the New Savannah Bluff Lock and Dam to a point where Spirit Creek empties into the Savannah River.
Section 50-13-680. It is unlawful to take fish by any method in Red Bluff Pond in Marlboro County without a permit issued by Marlboro County American Legion Post Sixty, which owns the pond. Fishing in the pond is subject to the same laws governing fishing in Lake Paul A. Wallace in Marlboro County except that minnows may be used for bait in Red Bluff Pond. It is lawful to net nongame fish in Red Bluff Pond in Marlboro County during the months of December, January, and February, from sunrise on Wednesday until sunset on Saturday, after registering with the caretaker of the pond. Each net used must be clearly marked and no person netting fish may have any other fishing equipment in his boat.
Section 50-13-690. The owner of any private pond or lake, or any person with the written permission of the owner, may, from November fifteenth to February fifteenth of each year, take nongame fish by means of net, seine, trap or other device within the perimeter of the private pond or lake in Chesterfield County without regard to whether or not the pond or lake is fed by a public stream.
Section 50-13-700. It is unlawful for any person to use or have in possession any drag seine or drag net more than four hundred feet long or more than twelve feet deep with mesh smaller than one and one-half inches in any waters in Beaufort County in Game Zone No. 11. Any person violating any of the provisions of this section is subject to a fine of not less than fifty dollars nor more than one hundred dollars or to imprisonment not exceeding thirty days for the first offense, and for a second or subsequent offense, must be fined not less than five hundred dollars nor more than one thousand dollars or imprisoned for not less than sixty days nor more than six months, or both fine and imprisonment, in the discretion of the court.
Section 50-13-730. Notwithstanding any other provision of law, the department is authorized to promulgate rules and regulations establishing the open season for the taking of nongame fish with nets in the fresh waters of the counties in Game Zone No. 9. Any such rules and regulations promulgated shall specify those waters in which nongame fish may be taken with nets, which species may be taken, the open season for such taking, any special schedules and any necessary restrictions including specifications as to what types and mesh size nets shall be permissible. Provided, however, that no rule or regulation promulgated hereunder or any change therein later issued by the department shall be effective in any county in Game Zone No. 9 or in the fresh waters therein unless a majority of the legislative delegation of that county approves such rule or regulation or change therein.
In promulgating the rules and regulations authorized by this section, the department shall not change or alter in any way the seasons, schedules or restrictions established by law for the taking of shad from any of the waters in Game Zone No. 9.
Any open season established by the department under the authority of this section relating to the open season for the taking of herring shall be from February twentieth to March thirty-first of each year, inclusive; and no nets shall be allowed for the taking of herring with a mesh size of less than three-inch square.
No herring may be taken by gill net in the Santee River or any of its tributaries upstream from S. C. Highway 41.
Section 50-13-735. Gizzard shad, threadfin shad, and herring may be taken with dip nets and seines in the Santee River, including that portion above U. S. Geological Survey Gauging Station No. 1715, with the following specifications and seasons:
(1) The net must be a hand-operated dip net with the bow constructed of wood or metal and the webbing of wire or textile material with a mesh size not greater than one and one-half inches square.
(2) The bow may not exceed six feet in any direction.
(3) The seine shall have a mesh size of not less than one-half inch square nor greater than one inch square.
(4) No seine may exceed one hundred yards in total length nor may any cable, line, or other device used for support of a herring seine extend more than halfway across the stream.
(5) The season for taking herring in the Santee River with the above-described gear is from February fifteenth to May first from sunrise Mondays until sunset Thursdays only.
Section 50-13-770. (1) It shall be unlawful to catch fish on the Combahee River from U.S. Highway No. 17 seaward using traps, trotlines or nets.
(2) Any person violating the provisions of this section is guilty of a misdemeanor and, upon conviction, shall be fined not less than twenty-five dollars nor more than one hundred dollars, or be imprisoned for not more than thirty days.
Section 50-13-795. It shall be lawful to fish for eels on any day of the week on the Savannah River in Jasper County.
Section 50-13-805. Notwithstanding any other provision of law, gill nets of a size no smaller than three inches stretch mesh may be used in Game Zone No. 10 on the main stream of the Big Pee Dee River and its tributaries from February fifteenth to April fifteenth, inclusive, from Wednesday, sunrise and ending Saturday, sundown, for the catching of herring.
Section 50-13-815. Gill nets of a mesh size of not less than seven and one-half inches nor greater than eight-inch stretch may be used during the months of June, July, and August in Conch Creek, a tributary of the Pee Dee River in Georgetown County. Any sturgeon caught in the nets must be immediately returned to the water.
Article 5
Special Provisions for Game Zone No. 7 and
Georgetown County
Section 50-13-980. Any person having in his possession on any lake, stream, river or their tributaries, going to or coming from such lake, stream, river, or their tributaries or in the fields or woods or going to or coming from the fields or woods any fish in excess of the limits set out in Chapters 1 through 19 of this title or in any state law shall be presumed to have killed or caught such fish.
Section 50-13-990. It shall be unlawful to ride a surfboard within one hundred yards of any fishing pier in Game Zone No. 7 and Georgetown County. Anyone violating the provisions of this section is guilty of a misdemeanor and, upon conviction, shall be fined not more than one hundred dollars or imprisoned for not more than thirty days.
Section 50-13-1010. This article shall not apply to persons fishing on the bottom with ordinary fishing poles, fly rods or rods and reels or hand lines which are actually in their possession.
Section 50-13-1020. Any person violating any one or more of the provisions of this article is guilty of a misdemeanor and, upon conviction, shall be fined for the first offense not less than twenty-five dollars, nor more than one hundred dollars, or be imprisoned for not more than thirty days; for the second offense, not less than fifty dollars, nor more than one hundred dollars, or be imprisoned for not more than thirty days; for the third offense, not less than one hundred dollars or be imprisoned for not more than sixty days; and for each subsequent offense the fine or imprisonment imposed for the last previous offense shall be doubled. Each violation of any provision of this article shall constitute a separate offense.
Article 6
Protection of Nongame Fish
Section 50-13-1110. The provisions of this article shall apply to the use of nongame fishing devices and the taking of nongame fish in the freshwaters of this State, which shall include all waters inland of the saltwater-freshwater dividing lines on the coastal rivers as established in Section 50-17-30. The provisions of this article shall not apply to shad or herring where otherwise provided by law.
Section 50-13-1115. (A) The following nongame fishing devices may be used for the taking of nongame fish in the freshwaters of this State in which such devices are authorized:
(1) trotlines,
(2) set hooks,
(3) jug fishing devices,
(4) traps,
(5) eel pots,
(6) gill nets,
(7) hoop nets,
(8) skimbow nets,
(9) bows and arrows,
(10) gigs,
(11) spears,
(12) tires,
(13) minnow seines,
(14) cast nets,
(15) seines,
(16) pump nets.
(B) The possession or use on the freshwaters of this State of any device or gear designed or used to catch nongame fish not authorized by this article is unlawful.
Nothing in this article shall be construed to prohibit the taking of nongame fish with lawful game fishing devices designed to take game fish.
Section 50-13-1116. Notwithstanding other provisions of this title, nongame fishing devices specified in Section 50-13-1115(A)(1), (4), (5), and (6), must be marked with a floating marker with a minimum capacity of one pint and a maximum capacity of one gallon or equivalent size and must be made of solid, buoyant material which does not sink if punctured or cracked. The floating markers must be constructed of plastic, PVC spongex, plastic foam, or cork. No hollow buoys or floats including plastic, metal, or glass bottles or jugs may be used, except manufactured buoys or floats specifically designed for use with nongame fishing devices may be hollow if constructed of heavy duty plastic material and approved by the department. The floating markers must be colored white when used the first through the fifteenth each month and yellow when used the remainder of the month. The owner's name and address must be marked clearly on each floating marker.
Nongame fishing devices specified in Section 50-13-1115(A)(2) must have an identification tag bearing the owner's name and address attached to it.
Section 50-13-1120. For the purposes of this article:
(a) `Set hook' is defined as a single hook and line set in or along any of the rivers, streams, lakes or waters of this State used to catch fish while attached to bushes, limbs, vines, undergrowth or other parts of vegetation, set poles, pegs, sticks or similar structures. `Set hooks' shall include all similar hook and line devices by whatever name called.
(b) `Jug fishing' is defined as fishing by use of a single hook and line attached to a free floating device other than a flotation marker for trotlines, traps or other devices.
(c) `Trap' is defined as any device in which fish are taken in an enclosed structure which conforms with the specifications contained in subsection (A) of Section 50-13-1165, except eel pots and shall include fish traps, baskets and like devices.
(d) `Eel pot' is defined as an enclosed structure used to take eels only and which conforms to the specifications provided in subsection (B) of Section 50-13-1165.
(e) `Trotline' is defined as two or more hooks attached to a common line which is rigged horizontally.
(f) `Hoop net' is defined as a device in which fish are taken in an enclosed structure which conforms with the specifications contained in Section 50-13-1175.
(g) `Skimbow net' is defined as a hand-operated dip net with the bow constructed of wood or metal with wire or textile netting with a mesh size not greater than one and one-half inches square. The bow shall not exceed six feet in any direction.
(h) `Minnow seine' is defined as a seine of a size not greater than four feet in width by twenty feet in length with a mesh size of not more than one-fourth inch square mesh.
(i) `Gig' is defined as a device consisting of a long staff on which two or more hooks or similar type sharp points normally with barbs are attached.
(j) `Spear' is defined as a device for thrusting or throwing consisting of a long staff to which a sharp head is fixed.
(k) `Bows and arrows' are defined as a strip of wood or other material bent by a string stretched between its ends used for shooting arrows.
(l) `Gill net' is defined as a device for the taking of nongame fish which conforms to the specifications provided in subsection (1) of Section 50-13-1170.
(m) `Yoyo' is a device to which `set hooks' are attached which is activated by spring-like devices.
(n) `Tires' are defined as truck or automobile tires not exceeding twenty-inch rim.
(o) `Cast net' is a circular shaped net with a lead line running around the outside edge. A cord line extends through a ring or horn in the center of the net and from this end there radiates numerous smaller cords (tuck line) which are fastened at regular intervals to the lead line.
(p) `Seine' is a net having a stretch mesh of not less than one inch and not more than one and one-half inches which do not exceed seventy-five feet in length or six feet in depth.
(q) `Pump net' is a net suspended from a pole placed in a forked stick or device which may be lowered or raised manually in a seesaw type action.
Section 50-13-1125. No fishing device authorized by this article shall be used, placed, set or fished so as to constitute a hazard to boating.
Section 50-13-1126. It shall be unlawful to anchor a seine and leave it unattended.
Section 50-13-1130. Any person involved in the taking of catfish by any method from the public waters who sells or offers for sale such catfish must have in possession a commercial freshwater fishing license as provided in subsection (3) of Section 50-13-1150.
Section 50-13-1135. On or before June 30, 1993:
(1) Any person who takes nongame fish in the freshwaters of this State with the following nongame fishing devices shall be required to obtain and have in possession a valid South Carolina state fishing license:
(a) bows and arrows;
(b) gigs;
(c) spears;
(d) tires;
(e) minnow seines;
(f) up to three trotlines with not more than one hundred fifty hooks on all lines;
(g) three to fifty set hooks;
(h) three to fifty jugs;
(i) not more than two traps;
(j) not more than one hoop net;
(k) one gill net no more than two hundred yards in length or no more than five gill nets, none of which exceeds thirty yards in length;
(l) not more than one skimbow net;
(m) not more than two eel pots;
(n) not more than one seine.
The noncommercial fisherman shall purchase set hook or jug fishing permits and any tags which may be required by this article for any particular device used. Such tags and permits shall be applied for on forms to be provided by the Department. Such fisherman shall comply with all other provisions of this article pertaining to the marking and use of nongame fishing devices.
(2) Any person who fishes for nongame fish in the freshwaters of this State by the use at any time of the following nongame fishing devices shall obtain and have in possession a commercial freshwater fishing license:
(a) two or more gill nets unless they are used as permitted by item (k) of subsection (1);
(b) two or more hoop nets;
(c) three or more traps;
(d) trotlines with a combined total of one hundred fifty-one hooks or more;
(e) three or more eel pots.
On and after July 1, 1993:
(A) (1) A person who takes nongame fish in the freshwaters of this State with the following nongame fishing devices shall obtain and must have in possession a valid South Carolina fishing license:
(a) bows and arrows;
(b) gigs;
(c) spears;
(d) tires;
(e) minnow seines;
(f) one trotline with not more than fifty hooks;
(g) three to fifty set hooks;
(h) three to fifty jugs;
(i) not more than two traps;
(j) not more than one hoop net;
(k) one gill net not more than two hundred yards in length or not more than five gill nets, none of which exceeds thirty yards in length;
(l) not more than one skimbow net;
(m) not more than two eel pots;
(n) not more than one seine.
(2) A noncommercial fisherman shall purchase set hook or jug fishing permits and tags required by this article for the particular device used. Tags and permits may be applied for on forms provided by the department. This fisherman shall comply with other provisions of this article pertaining to the marking and use of nongame fishing devices.
(B) A person who fishes for nongame fish in the freshwaters of this State by the use of the following nongame fishing devices shall obtain and must have in possession a commercial freshwater fishing license:
(1) two or more gill nets unless they are used as permitted by subsection (A)(1)(k);
(2) two or more hoop nets;
(3) three or more traps;
(4) a trotline with fifty-one hooks or more;
(5) three or more eel pots.
Section 50-13-1140. No license shall be required of any person who fishes for nongame fish in the freshwaters of this State with not more than two set hooks or jugs with the exception of a lakes and reservoirs permit as required by Section 50-9-500.
Section 50-13-1145. On or before June 30, 1993:
Exclusive of strictly private ponds, no person shall fish in any individual freshwater lake or stream of this State with more than (1) fifty jugs; (2) one skimbow net; (3) fifty set hooks; (4) fifty hoop nets; (5) fifty traps; (6) two thousand trot line hooks.
From and after July 1, 1993:
Exclusive of strictly private ponds, no person may fish in an individual freshwater lake or stream of this State with more than:
(1) fifty jugs;
(2) one skimbow net;
(3) fifty set hooks;
(4) fifty hoop nets;
(5) fifty traps;
(6) five hundred trotline hooks.
Section 50-13-1150. On or before June 30, 1993:
Any person who has been a resident of this State continuously for at least twelve months may apply on forms to be furnished by the department for a commercial freshwater fishing license. Upon proof satisfactory to the department of his residency, he shall upon payment of an annual fee of fifty dollars be issued a resident commercial freshwater fishing license. A nonresident person, which shall include a person who has not been a resident of this State continuously for at least twelve months prior to his application, may apply on forms to be furnished by the department for a nonresident commercial freshwater fishing license and, upon approval of the application by the department and the payment of an annual fee of five hundred dollars, shall be issued such license.
From and after July 1, 1993: (A) A person who has been a resident of this State continuously for at least twelve months may apply on forms furnished by the department for a commercial freshwater fishing license. Upon proof satisfactory to the department of his residency and payment of an annual fee of fifty dollars, he must be issued a resident commercial freshwater fishing license.
(B) A nonresident, including a person who has not been a resident of this State continuously for at least twelve months before his application, may apply on forms furnished by the department for a nonresident commercial freshwater fishing license. Upon approval of the application by the department and the payment of an annual fee of one thousand dollars, he must be issued the license.
Section 50-13-1155. On or before June 30, 1993:
In addition to the licenses and permits required by Sections 50-13-1135 and 50-13-1150, any person fishing with, or in possession of, nongame fishing devices or gear in the freshwaters of this State shall purchase a tag or permit for each such device as follows:
(1) a tag for each gill net at five dollars per tag;
(2) a tag for each hoop net at ten dollars per tag;
(3) a tag for each trap at five dollars per tag;
(4) a tag for each eel pot at five dollars per tag;
(5) a tag for each trotline with fifty hooks or less at two dollars fifty cents per tag;
(6) a permit for the use of fifty set hooks or less at five dollars per permit;
(7) a permit for the use of fifty jugs or less at five dollars per permit.
Each tag issued pursuant to this section shall be attached at all times to the device for which it was issued and each permit and tag identification receipt shall be kept on the person to whom it was issued while such person is in possession of or using nongame fishing devices.
A fee of one dollar shall be paid for replacement of any tag or permit issued pursuant to this section which is lost or destroyed.
A person sixty-five years of age or older and minors under the age of sixteen are not required to purchase a permit to comply with item (6) of this section but a tag with the person's name, address, and age must be attached to the device.
From and after July 1, 1993:
(A) (1) In addition to the licenses and permits required by Sections 50-13-1135 and 50-13-1150, a person fishing with, or in possession of, nongame fishing devices or gear in the freshwaters of this State shall purchase a tag or permit for each device as follows:
(a) a tag for each gill net at five dollars a tag;
(b) a tag for each hoop net at ten dollars a tag;
(c) a tag for each trap at five dollars a tag;
(d) a tag for each eel pot at five dollars a tag;
(e) a tag for a trotline with fifty hooks or less at two dollars fifty cents a tag;
(f) a permit for the use of fifty set hooks or less at five dollars a permit;
(g) a permit for the use of fifty jugs or less at five dollars a permit.
(2) The cost of the tags and permits in item (1) applies to residents. The cost of each tag and permit for nonresidents is fifty dollars.
(B) Each tag issued pursuant to this section must be attached at all times to the device for which it was issued. Each permit and tag identification receipt must be kept on the person to whom it was issued while the person is in possession of or using nongame fishing devices.
(C) A fee of one dollar must be paid for replacement of a tag or permit issued pursuant to this section which is lost or destroyed.
(D) A person sixty-five years of age or older and minors under sixteen years of age are not required to purchase a permit to comply with subsection (A)(1)(f) but a tag with the person's name, address, and age must be attached to the device.
(E) As used in this section, nonresident is defined as in Section 50-13-1150.
Section 50-13-1160. All nongame, noncommercial or commercial, freshwater fishing licenses, tags and permits required by this article shall be issued for the period of July first to June thirtieth. It shall be unlawful for any person to make false application for, alter, borrow, loan or exchange any such license, tag or permit.
Section 50-13-1165. (A) Any trap used under authority of this article shall conform to one of the following specifications:
(1) the trap shall be made of wire or textile material and be cylindrical in shape of a length of not more than six feet and a width of not more than three feet.
(a) the mesh size shall not be smaller than one inch by one inch and there shall only be one application of exterior wire to the trap;
(b) the muzzle shall have one of the following designs:
(i) a trap door on the second muzzle or catch muzzle which remains in a closed position and which only opens for the entry of fish into the trap; the trap door shall be constructed of the same material as the trap;
(ii) construction of a netting so that the opening of the small end of the second muzzle or catch muzzle is held in the shape of a slit and the trap configuration constructed such that as the trap rests on the bottom the slit shall be oriented horizontally with the greatest verticle opening being no greater than one inch.
(2) the trap shall be made of wood strips or slats and be cylindrical or rectangular in shape. The length shall not exceed six feet and the width or diameter shall not exceed two feet.
(a) the throat opening of the catch muzzle in a resting position shall not exceed three inches measured in any direction.
(b) the sides, top and rear of the trap shall have a minimum of one inch openings between the slats to allow for the escape of small catfish. This shall apply only to the last twelve inches of the trap.
(B) Any eel pot used under authority of this article shall conform to the following specifications:
(1) pots shall be no larger than twenty-four inches by forty-eight inches;
(2) all eel pots shall be constructed of wire so that:
(a) the mesh size is no smaller than one-half by one-half inch, except for the throat or muzzle and the end opposite the throat or muzzle of cylindrical pots;
(b) a throat opening not to exceed two inches measured in any direction.
(C) (1) Traps and eel pots may be suspended above the bottom of the body of water in which they are used at a depth which does not create a hazard to watercraft passing over them.
(2) There shall be no restriction on the type of bait permissible in traps or eel pots, except that no game fish or any part thereof shall be used for bait.
(3) There shall be no closed season for fishing with traps or eel pots in the freshwaters of this State in which the use of traps or eel pots is permitted except temporarily by regulation of the Department if low water conditions or any emergency situation develops.
(4) No trap or eel pot shall be placed within one hundred feet of the mouth of any tributary stream and no trap or pot shall be placed anywhere in the diversion canal connecting Lakes Marion and Moultrie nor placed within two hundred yards of permanent man-made structure of Lakes Marion and Moultrie.
(5) No crab pot or trap of like design shall be used in the freshwaters of this State.
Section 50-13-1170. The season for taking nongame fish other than shad and herring in the freshwaters of this State with gill nets shall be from November first to March first inclusive. They may be used or possessed in the freshwaters in which their use is authorized on Wednesdays, Thursdays, Fridays and Saturdays only. Nongame gill nets used in the freshwaters shall have a mesh size of not less than four and one-half inches stretch mesh. No gill net measuring more than two hundred yards in length may be used in the freshwaters and no gill net, cable, line or any other device used for support of a gill net shall extend more than half way across any stream or body of water. Gill nets shall be placed in the freshwater on a first come first served basis but no gill net shall be placed within two hundred yards of another gill net. Use or possession of gill nets at any place or time other than those prescribed above shall be unlawful.
Nongame fish, including Atlantic sturgeon of legal size and caught during open season as established under Section 50-17-830, in licensed shad nets lawfully fished during the open season for taking shad may be kept by the fisherman. Any Atlantic sturgeon caught during the closed season for Atlantic sturgeon must be returned immediately to the waters from whence it was taken.
Section 50-13-1175. Hoop nets may be used or possessed in the freshwaters in which their use is authorized by Section 50-13-1192. The maximum size of hoop nets shall be sixteen feet by five and one-half feet. Hoop nets shall be made of a textile netting (no wire) of a mesh size not less than one inch square nor greater than two inches square enclosing a series of round hoops with two or more muzzle openings which shall be made of a netting material. One side of the hoop may be flat to hold the nets in place. Hoop nets shall rest on the bottom of the body of water in which they are used and shall not be suspended above the bottom. Hoop nets shall not be used within one hundred feet of the mouth of any tributary stream. The maximum number of hoop nets which may be used by one licensee shall be fifty. Use or possession of hoop nets at any place or time other than those prescribed above shall be unlawful.
Section 50-13-1180. (A) No more than five hundred hooks may be attached to a single trotline. A trotline must not be attached to another trotline or to the support or float of another trotline.
(B) April first to October first a trotline is not permitted in waters in this State one hour after official sunrise to one hour before official sunset unless the trotline is sunk to the bottom or to a minimum depth of four feet below the water surface. October second to March thirty-first trotlines may be left in the water twenty-four hours a day at any depth.
(C) A trotline must not be placed within one hundred feet of the mouth of a tributary stream.
(D) A trotline may not remain in the waters of this State more than twenty-four hours without inspection and removal of the fish taken on it.
(E) A trotline must not be placed within two hundred yards of a permanent man-made structure on Lakes Marion and Moultrie nor placed in the diversion canal connecting Lakes Marion and Moultrie.
(F) Trotline hooks used in Lakes Marion and Moultrie must have a gap or clearance between point and shank no greater than seven-sixteenths inch.
(G) Stainless steel hooks must not be used on a trotline.
Section 50-13-1185. All set hooks shall be removed from the water and the vegetation or structure to which they are attached not later than one hour after sunrise each day and shall not be reattached earlier than one hour before official sunset.
Section 50-13-1186. All jugs used in fishing in freshwaters shall range between a minimum capacity of one pint and a maximum capacity of one gallon with the licensee's name and address clearly marked on each jug. All jugs shall be removed from the water one hour after sunrise each day and not replaced before one hour before official sunset. The attachment of more than one hook and line to a jug fishing device is prohibited.
Section 50-13-1187. No game fish, live bait or any other bait other than bait listed below shall be used with trotlines, set hooks and jugs:
(1) soap
(2) dough balls
(3) cut fish (nongame fish cut into at least three equal parts)
(4) shrimp
(5) meat scraps (shall not include insects, worms or other invertebrates)
(6) grapes.
Section 50-13-1188. It shall be unlawful to use or have in possession a minnow seine, as defined by item (h) of Section 50-13-1120, in the freshwaters of this State from ten p.m. to official sunrise.
Section 50-13-1189. It is unlawful for any person to have in his possession game fish or fishing tackle capable of catching game fish while fishing for nongame fish with nongame tackle authorized for use by this chapter. The provisions of this section do not apply to a person whose nongame tackle consists of bows and arrows or cast nets.
Section 50-13-1190. It shall be unlawful to use yoyos as defined in item (m) of Section 50-13-1120 in the freshwaters of this State.
Section 50-13-1191. It shall be unlawful for any person to check, fish or use in any manner the nongame fishing device or gear owned and tagged by another person or to take from any such device or gear any fish caught thereon.
Section 50-13-1192. On or before June 30, 1993:
Bows and arrows, gigs, spears, tires, cast nets and minnow seines may be used in any of the freshwaters except in the lakes owned or managed by the department. Notwithstanding any other provision of this article, it shall be unlawful to use or possess any nongame fishing device or gear or the number not authorized by this section for a particular body of water. Nongame fishing devices, with the exception of the above, may not be used in any body of freshwater including tributaries of rivers or creeks unless listed and regulated as indicated below:
Ashepoo River:
Set hooks Fifty maximum per license holder
Eel pots No limit
Ashley River:
Set hooks Fifty maximum per license holder
Eel pots No limit
Black Creek:
Darlington, Florence, Chesterfield Counties (includes Lakes Robinson and Prestwood)
Trotlines One hundred fifty hooks maximum (three-line maximum per license holder)
Gill nets Nongame nets in season
Set hooks Fifty maximum per license holder
Black River:
Gill nets Nongame nets in season
Set Hooks Fifty maximum per license holder
Broad River:
Includes the waters from the North Carolina State line to the confluence of the Broad and Saluda Rivers
Traps Five per license holder
Trotlines One hundred fifty maximum (three-line maximum per license holder)
Set hooks Fifty maximum per license holder
Seines From Highway 34 Bridge up-one per license holder
Bull Creek:
Horry and Georgetown Counties
Trotlines One hundred fifty hooks maximum (three-line maximum per license holder)
Gill nets Nongame nets in season
Eel pots No limit
Traps Fifty maximum with commercial license
Buffalo Creek:
Seines One per license holder
Bush River:
(Laurens County)
Seines One per license holder
Combahee River:
Set hooks Maximum fifty per license holder
Eel pots No limit
Congaree River:
Includes the waters from the Gervais Street Bridge in Columbia to the confluence of the Congaree and Wateree Rivers
Traps Fifty maximum with commercial license
Trotlines Two thousand hooks maximum with commercial license
Hoop nets Fifty maximum with commercial license
Cooper River:
Traps Fifty maximum with commercial license (not allowed upstream from Wadboo Creek)
Trotlines One hundred fifty hooks maximum (three-line maximum per license holder, no trotlines permitted upstream from Wadboo Creek)
Fyke nets As allowed for eel fishing by regulation
Set hooks Fifty maximum per license holder (no set hooks permitted upstream from Wadboo Creek)
Eel pots No limit (not allowed upstream from Wadboo Creek)
Pump nets No limit
Coosawhatchie and Tullifinny Rivers:
Set hooks Maximum fifty per license holder
Mallard's Lake:
Dorchester County waters
Gill nets Nongame nets in season
Set hooks Fifty maximum per license holder
Mims Lake:
Dorchester County waters
Gill nets Nongame nets in season
Set hooks Fifty maximum per license holder
Shuler Lake:
Dorchester County waters
Gill nets Nongame nets in season
Set hooks Fifty maximum per license holder
Woods Lake:
Dorchester County waters
Gill nets Nongame nets in season
Set hooks Fifty maximum per license holder
Bridge Lake:
Dorchester County waters
Gill nets Nongame nets in season
Set hooks Fifty maximum per license holder
Little Pond Lake:
Dorchester County waters
Gill nets Nongame nets in season
Set hooks Fifty maximum per license holder
Steed's Lake:
Dorchester County waters
Gill nets Nongame nets in season
Set hooks Fifty maximum per license holder
John's Hole Lake:
Dorchester County waters
Gill nets Nongame nets in season
Set hooks Fifty maximum per license holder
Rock's Lake:
Dorchester County waters
Gill nets Nongame nets in season
Set hooks Fifty maximum per license holder
Mouth of Four Holes Lake:
Dorchester County waters
Gill nets Nongame nets in season
Set hooks Fifty maximum per license holder
Durbin Creek:
Seines One per license holder
Edisto River:
Set hooks Fifty maximum per license holder
Eel pots No limit
Enoree River:
Traps Two per license holder
Trotlines One hundred fifty maximum (three-line maximum) per license holder
Set hooks Fifty per license holder
Seines One per license holder (from Southern Railroad in Greenville County down)
Great Pee Dee River:
Includes the waters from I-95 to North Carolina state line
Traps Maximum fifty allowed with commercial license
Trotlines Maximum two thousand hooks with commercial license
Gill nets Nongame nets allowed in season
Set hooks Fifty maximum per license holder
Hoop nets Maximum fifty with commercial license (north of S.C. 34 only).
Great Pee Dee River:
Includes the water from I-95 to the saltwater-freshwater line
Gill nets Nongame nets in season
Trotlines One hundred fifty hooks maximum per license holder (three-line maximum)
Set hooks Fifty maximum per license holder
Eel pots Below Highway 701 bridge only, no limit
Traps Maximum fifty allowed with commercial license
Jefferies Creek (Florence County):
Gill nets Nongame nets in season
Trotlines One hundred fifty hooks maximum per license holder (three-line maximum)
Lake Clark Hill and Stevens Creek:
Traps Maximum five per license holder
Trotlines One hundred fifty hooks maximum per license holder (three-line maximum)
Jugs Maximum fifty per license holder
Lake Greenwood:
Traps Maximum five per license holder
Trotlines One hundred fifty hooks maximum per license holder (three-line maximum)
Jugs Maximum fifty per license holder
Lake Hartwell:
Traps Maximum five per license holder
Trotlines One hundred fifty hooks maximum per license holder (three-line maximum)
Lake Jocassee:
Nongame devices prohibited
Lake Keowee:
Traps Maximum five per license holder
Trotlines One hundred fifty hooks maximum per license holder (three-line maximum)
Lake Marion and Moultrie:
The waters lying between the confluence of the Wateree and Congaree Rivers and the back waters of Lake Marion shall be considered a part of Lake Marion
Traps Maximum fifty with commercial license
Trotlines Maximum two thousand hooks with commercial license
Lake Murray:
Traps Maximum five per license holder
Trotlines One hundred fifty hooks maximum per license holder (three-line maximum)
Lake Richard B. Russell:
Traps Maximum five per license holder
Trotlines One hundred fifty hooks maximum per license holder (three-line maximum)
Jugs Maximum fifty per license holder
Lake Secession:
Traps Maximum two per license holder
Trotlines One hundred fifty hooks maximum per license holder (three-line maximum)
Jugs Maximum fifty per license holder
Lake Wateree:
Traps Maximum five per license holder
Trotlines One hundred fifty hooks maximum per license holder (three-line maximum)
Catawba River:
Includes the waters from the Lake Wylie Dam to the backwaters of Lake Wateree, including all reservoirs
Traps Maximum two per license holder
Trotlines One hundred fifty hooks maximum per license holder (three-line maximum)
Set hooks Fifty maximum per license holder
Seines One per license holder (York County only)
Lake Wylie:
Traps Maximum five per license holder
Trotlines One hundred fifty hooks maximum per license holder (three-line maximum)
Little River:
Seines One per license holder (from Mars Bridge in McCormick County up)
Little Pee Dee River:
Trotlines One hundred fifty hooks maximum per license holder (three-line maximum)
Gill nets Nongame nets allowed in season
Set hooks Fifty maximum per license holder
Log Creek:
(Edgefield County)
Seines One per license holder
Long Cane Creek:
(above Patterson Bridge)
Seines One per license holder
Louder's Lake:
Darlington County
Gill nets Nongame nets in season
Set hooks Fifty maximum per license holder
Lumber River:
Trotlines One hundred fifty hooks maximum (three-line maximum)
Gill nets Nongame nets in season
Set hooks Fifty maximum per license holder
Lynches River:
Trotlines One hundred fifty hooks maximum per license holder (three-line maximum)
Gill nets Nongame nets allowed in season
Set hooks Fifty maximum per license holder
Mulberry Creek:
(Greenwood County)
Seines One per license holder
New River:
Set hooks Fifty maximum per license holder
Old River:
Set hooks Fifty maximum per license holder
Trotlines One hundred fifty hooks (three-line maximum per license holder)
Pacolet River:
Traps Two per license holder
Trotlines One hundred fifty hooks maximum (three-line maximum per license holder)
Set hooks Fifty maximum per license holder
Seines One per license holder
Rabon Creek:
(Laurens County)
Seines One per license holder
Redbank Creek:
(Saluda County west of Highway 121)
Seines One per license holder
Reedy River:
Traps Two per license holder
Trotlines One hundred fifty maximum (three-line maximum per license holder)
Set hooks Fifty maximum per license holder
Seines One per license holder (from Southern Railroad in Greenville County down)
Rocky River:
(Anderson County)
Seines One per license holder
Salkehatchie River:
Set hooks Fifty maximum per license holder
Saluda River:
Includes the waters from the Southern Railroad Trestle in Greenville County to the backwaters of Lake Greenwood and the waters from the Lake Greenwood Dam to the backwaters of Lake Murray
Traps Two per license holder
Trotlines One hundred fifty hooks maximum (three-line maximum per license holder)
Set hooks Fifty maximum per license holder
Seines One per license holder (in Anderson, Laurens, and Greenville Counties only, except in Anderson County seines may be used in the river tributaries)
Saluda River:
Includes the waters from the Lake Murray Dam to the Gervais Street Bridge in Columbia
Traps Two per license holder
Trotlines One hundred fifty hooks maximum (three-line maximum per license holder)
Sampit River:
Gill nets Nongame in season
Traps Fifty maximum with commercial license
Set hooks Fifty maximum per license holder
Santee River:
Downstream from Wilson Dam on Lake Marion: note that the waters lying between the confluence of the Wateree and Congaree Rivers and Lake Marion are considered a part of Lake Marion
Traps Fifty maximum with commercial license
Trotlines One hundred fifty hooks maximum (three-line maximum per license holder)
No nongame gear (except skimbow nets allowed upstream of U.S. Geological Survey Gauging Station No. 1715 which is approximately 2.4 miles below Santee Dam)
Eel pots No limit
Savannah River:
Below Stevens Creek Dam
Traps Fifty maximum with commercial license
Hoop nets Fifty maximum with commercial license
Set hooks Fifty maximum per license holder
Gill nets Nongame nets in season
Trotlines Two thousand maximum hooks with commercial license
Eel pots No limit
Stevens Creek:
(above Clark's Hill Bridge)
Seines One per license holder
Thickly Creek:
(Cherokee County)
Seines One per license holder
Turkey Creek:
(Edgefield and Greenwood Counties)
Seines One per license holder
Twelve Mile Creek:
Traps Maximum two per license holder
Trotlines One hundred fifty hooks maximum per license holder (three-line maximum)
Set hooks Fifty maximum per license holder
Tyger River:
Traps Maximum two per license holder
Trotlines One hundred fifty hooks maximum (three-line maximum per license holder)
Set hooks Fifty maximum per license holder
Seines One per license holder
Waccamaw River:
Trotlines One hundred fifty hooks maximum (three-line maximum per license holder)
Gill nets Nongame nets in season
Set hooks Fifty maximum per license holder
Eel pots Below the junction of Big Bull Creek (no limit)
Warrior Creek:
(Laurens County)
Seines One per license holder
Wateree River:
Traps Fifty maximum with commercial license
Trotlines Two thousand hooks maximum with commercial license
Set hooks Fifty maximum per license holder
Hoop nets Fifty maximum with commercial license
Wilson Creek:
(Greenwood County)
Seines One per license holder (one mile above the back waters of Greenwood up)
From and after July 1, 1993:
Bows and arrows, gigs, spears, tires, cast nets, and minnow seines may be used in freshwaters except in lakes owned or managed by the department.
Notwithstanding other provisions of this article, it is unlawful to use or possess a nongame fishing device or gear or the number not authorized by this section for a particular body of water. Nongame fishing devices, except as provided in this section, must not be used in freshwater including tributaries of rivers or creeks unless listed and regulated as indicated below:
(1) Ashepoo River:
(a) set hooks: fifty maximum for each license holder;
(b) eel pots: no limit;
(2) Ashley River:
(a) set hooks: fifty maximum for each license holder;
(b) eel pots: no limit;
(3) Black Creek; Darlington, Florence, and Chesterfield counties including Lakes Robinson and Prestwood:
(a) trotlines: fifty hooks maximum for each license holder;
(b) gill nets: nongame nets in season;
(c) set hooks: fifty maximum for each license holder;
(4) Black River:
(a) gill nets: nongame nets in season;
(b) set hooks: fifty maximum for each license holder;
(c) trotlines: fifty hooks maximum for each license holder;
(5) Broad River, includes the waters from the North Carolina line to the confluence of the Broad and Saluda Rivers:
(a) traps: five for each license holder;
(b) trotlines: fifty maximum for each license holder;
(c) set hooks: fifty maximum for each license holder;
(d) seines from Highway 34 Bridge up: one for each license holder;
(6) Bull Creek; Horry and Georgetown counties:
(a) trotlines: fifty hooks maximum;
(b) gill nets: nongame nets in season;
(c) eel pots: no limit;
(d) traps: fifty maximum with commercial license;
(7) Buffalo Creek: seines: one for each license holder;
(8) Bush River, Laurens County: seines: one for each license holder;
(9) Combahee River:
(a) set hooks: maximum fifty for each license holder;
(b) eel pots: no limit;
(10) Congaree River, includes the waters from the Gervais Street Bridge in Columbia to the confluence of the Congaree and Wateree Rivers:
(a) traps: fifty maximum with commercial license;
(b) trotlines: five hundred hooks maximum with commercial license;
(c) hoop nets: fifty maximum with commercial license;
(11) Cooper River:
(a) traps: fifty maximum with commercial license and not allowed upstream from Wadboo Creek;
(b) trotlines: fifty hooks maximum for each license holder. No trotlines permitted upstream from Wadboo Creek;
(c) fyke nets: as allowed for eel fishing by regulation;
(d) set hooks: fifty maximum for each license holder, and no set hooks permitted upstream from Wadboo Creek;
(e) eel pots: no limit and not allowed upstream from Wadboo Creek;
(f) pump nets: no limit;
(12) Coosawhatchie and Tullifinny Rivers: set hooks: fifty maximum for each license holder;
(13) Mallard's Lake, Dorchester County waters:
(a) gill nets: nongame nets in season;
(b) set hooks: fifty maximum for each license holder;
(14) Mims Lake, Dorchester County waters:
(a) gill nets: nongame nets in season;
(b) set hooks: fifty maximum for each license holder;
(15) Shuler Lake, Dorchester County waters:
(a) gill nets: nongame nets in season;
(b) set hooks: fifty maximum for each license holder;
(16) Woods Lake, Dorchester County waters:
(a) gill nets: nongame nets in season;
(b) set hooks: fifty maximum for each license holder;
(17) Bridge Lake, Dorchester County waters:
(a) gill nets: nongame nets in season;
(b) set hooks: fifty maximum for each license holder;
(18) Little Pond Lake, Dorchester County waters;
(a) gill nets: nongame nets in season;
(b) set hooks: fifty maximum for each license holder;
(19) Steed's Lake, Dorchester County waters:
(a) gill nets: nongame nets in season;
(b) set hooks: fifty maximum for each license holder;
(20) John's Hole Lake, Dorchester County waters:
(a) gill nets: nongame nets in season;
(b) set hooks: fifty maximum for each license holder;
(21) Rock's Lake, Dorchester County waters:
(a) gill nets: nongame nets in season;
(b) set hooks: fifty maximum for each license holder;
(22) Mouth of Four Holes Lake, Dorchester County waters:
(a) gill nets: nongame nets in season;
(b) set hooks: fifty maximum for each license holder;
(23) Durbin Creek: seines: one for each license holder;
(24) Edisto River:
(a) set hooks: fifty maximum for each license holder;
(b) eel pots: no limit;
(25) Enoree River:
(a) traps: two for each license holder;
(b) trotlines: fifty maximum for each license holder;
(c) set hooks: fifty for each license holder;
(d) seines: one for each license holder from Southern Railroad in Greenville County down;
(26) Great Pee Dee River, includes the waters from I-95 to the North Carolina line;
(a) traps: fifty maximum allowed with commercial license;
(b) trotlines: five hundred maximum hooks with commercial license;
(c) gill nets: nongame nets allowed in season;
(d) set hooks: fifty maximum for each license holder;
(e) hoop nets: fifty maximum with commercial license north of S.C. 34 only;
(27) Great Pee Dee River, includes the water from I-95 to the saltwater-freshwater line:
(a) gill nets: nongame nets in season;
(b) trotlines: fifty hooks maximum for each license holder;
(c) set hooks: fifty maximum for each license holder;
(d) eel pots: below Highway 701 bridge only, no limit;
(e) traps: fifty maximum allowed with commercial license;
(28) Jefferies Creek, Florence County:
(a) gill nets: nongame nets in season;
(b) trotlines: fifty hooks maximum for each license holder;
(29) Lake J. Strom Thurmond and Stevens Creek:
(a) traps: five maximum for each license holder;
(b) trotlines: fifty hooks maximum for each license holder;
(c) jugs: fifty maximum for each license holder;
(30) Lake Greenwood:
(a) traps: five maximum for each license holder;
(b) trotlines: fifty hooks maximum for each license holder;
(c) jugs: fifty maximum for each license holder;
(31) Lake Hartwell:
(a) traps: five maximum for each license holder;
(b) trotlines: fifty hooks maximum for each license holder;
(32) Lake Jocassee: nongame devices prohibited;
(33) Lake Keowee:
(a) traps: five maximum for each license holder;
(b) trotlines: fifty hooks maximum for each license holder;
(34) Lakes Marion and Moultrie, the waters lying between the confluence of the Wateree and Congaree Rivers, and the backwaters of Lake Marion are considered a part of Lake Marion:
(a) traps: fifty maximum with commercial license;
(b) trotlines: one thousand hooks maximum with commercial license. Hooks must have a gap or clearance between point and shank no greater than seven-sixteenths inch;
(35) Lake Murray:
(a) traps: five maximum for each license holder;
(b) trotlines: fifty hooks maximum for each license holder;
(36) Lake Richard B. Russell:
(a) traps: five maximum for each license holder;
(b) trotlines: fifty hooks maximum for each license holder;
(c) jugs: fifty maximum for each license holder;
(37) Lake Secession:
(a) traps: two maximum for each license holder;
(b) trotlines: fifty hooks maximum for each license holder;
(c) jugs: fifty maximum for each license holder;
(38) Lake Wateree:
(a) traps: five maximum for each license holder;
(b) trotlines: fifty hooks maximum for each license holder;
(39) Catawba River, includes the waters from the Lake Wylie Dam to the backwaters of Lake Wateree, including reservoirs:
(a) traps: two maximum for each license holder;
(b) trotlines: fifty hooks maximum for each license holder;
(c) set hooks: fifty maximum for each license holder;
(d) seines: one for each license holder, York County only;
(40) Lake Wylie:
(a) traps: five maximum for each license holder;
(b) trotlines: fifty hooks maximum for each license holder;
(41) Little River: seines: one for each license holder from Mars Bridge in McCormick County up;
(42) Little Pee Dee River:
(a) trotlines: fifty hooks maximum for each license holder;
(b) gill nets: nongame nets allowed in season;
(c) set hooks: fifty maximum for each license holder;
(43) Log Creek, Edgefield County: seines: one for each license holder;
(44) Long Cane Creek, above Patterson Bridge: seines: one for each license holder;
(45) Louder's Lake, Darlington County:
(a) gill nets: nongame nets in season;
(b) set hooks: fifty maximum for each license holder;
(46) Lumber River:
(a) trotlines: fifty hooks maximum;
(b) gill nets: nongame nets in season;
(c) set hooks: fifty maximum for each license holder;
(47) Lynches River:
(a) trotlines: fifty hooks maximum for each license holder;
(b) gill nets: nongame nets allowed in season;
(c) set hooks: fifty maximum for each license holder;
(48) Mulberry Creek, Greenwood County: seines: one for each license holder;
(49) New River: set hooks: fifty maximum for each license holder;
(50) Old River:
(a) set hooks: fifty maximum for each license holder;
(b) trotlines: fifty hooks maximum for each license holder;
(51) Pacolet River:
(a) traps: two for each license holder;
(b) trotlines: fifty hooks maximum for each license holder;
(c) set hooks: fifty maximum for each license holder;
(d) seines: one for each license holder;
(52) Rabon Creek, Laurens County: seines: one for each license holder;
(53) Redbank Creek, Saluda County west of Highway 121: seines: one for each license holder;
(54) Reedy River:
(a) traps: two for each license holder;
(b) trotlines: fifty maximum for each license holder;
(c) set hooks: fifty maximum for each license holder;
(d) seines: one for each license holder from Southern Railroad in Greenville County down;
(55) Rocky River, Anderson County: seines: one for each license holder;
(56) Salkehatchie River: set hooks: fifty maximum for each license holder;
(57) Saluda River, includes the waters from the Southern Railroad Trestle in Greenville County to the backwaters of Lake Greenwood and the waters from the Lake Greenwood Dam to the backwaters of Lake Murray:
(a) traps: two for each license holder;
(b) trotlines: fifty hooks maximum for each license holder;
(c) set hooks: fifty maximum for each license holder;
(d) seines: one for each license holder, in Anderson, Laurens, and Greenville counties only, except in Anderson County seines may be used in the river tributaries;
(58) Saluda River, includes the waters from the Lake Murray Dam to the Gervais Street Bridge in Columbia:
(a) traps: two for each license holder;
(b) trotlines: fifty hooks maximum for each license holder;
(59) Sampit River:
(a) gill nets: nongame nets in season;
(b) traps: fifty maximum with commercial license;
(c) set hooks: fifty maximum for each license holder;
(60) Santee River, downstream from Wilson Dam on Lake Marion, and the waters lying between the confluence of the Wateree and Congaree Rivers and Lake Marion are considered a part of Lake Marion:
(a) traps: fifty maximum with commercial license;
(b) trotlines: fifty hooks maximum, for each license holder;
(c) nongame gear: not allowed, except skimbow nets allowed upstream of U.S. Geological Survey Gauging Station No. 1715 which is approximately 2.4 miles below Santee Dam;
(d) eel pots: no limit;
(61) Savannah River below Stevens Creek Dam:
(a) traps: fifty maximum with commercial license;
(b) hoop nets: fifty maximum with commercial license;
(c) set hooks: fifty maximum for each license holder;
(d) gill nets: nongame nets in season;
(e) trotlines: five hundred maximum hooks with commercial license;
(f) eel pots: no limit;
(62) Stevens Creek, above Clark's Hill Bridge: seines: one for each license holder;
(63) Thickly Creek, Cherokee County: seines: one for each license holder;
(64) Turkey Creek, Edgefield and Greenwood counties: seines: one for each license holder;
(65) Twelve Mile Creek:
(a) traps: two maximum for each license holder;
(b) trotlines: fifty hooks maximum for each license holder;
(c) set hooks: fifty maximum for each license holder;
(66) Tyger River:
(a) traps: two maximum for each license holder;
(b) trotlines: fifty hooks maximum for each license holder;
(c) set hooks: fifty maximum for each license holder;
(d) seines: one for each license holder;
(67) Waccamaw River:
(a) trotlines: fifty hooks maximum for each license holder;
(b) gill nets: nongame nets in season;
(c) set hooks: fifty maximum for each license holder;
(d) eel pots, below the junction of Big Bull Creek: no limit;
(68) Warrior Creek, Laurens County: seines: one for each license holder;
(69) Wateree River:
(a) traps: fifty maximum with commercial license;
(b) trotlines: five hundred hooks maximum with commercial license;
(c) set hooks: fifty maximum for each license holder;
(d) hoop nets: fifty maximum with commercial license;
(70) Wilson Creek, Greenwood County: seines: one for each license holder one mile above the backwaters of Greenwood up.
Section 50-13-1193. All enforcement officers and any other employee of the department designated by the board may, at any and all reasonable hours, inspect the vehicles, boats, processing houses and wholesale businesses which are connected with nongame commercial fishing activity and the records of any person required to be licensed by this article to ensure compliance. Upon request of the department the buyers (fish houses) of nongame fish shall report quarterly the volume of sales.
Section 50-13-1194. The department may adopt and promulgate regulations for the management, control and enforcement of nongame fishing in the freshwaters of the State, not contrary to or inconsistent with the laws of the State.
Section 50-13-1195. On or before June 30, 1993:
Any person violating any of the provisions of this article or any regulations adopted and promulgated under authority of this article is guilty of a misdemeanor and, upon conviction, be fined not less than fifty dollars nor more than two hundred dollars or imprisoned not more than thirty days.
From and after July 1, 1993:
A person violating this article or regulations adopted and promulgated under its authority is guilty of a misdemeanor and, upon conviction, must be fined not less than fifty nor more than two hundred dollars or imprisoned not more than thirty days. In addition to that penalty, the court may require the person to forfeit for one year tags and permits purchased pursuant to Section 50-13-1155 and may provide for his ineligibility for other tags and permits for that year.
Section 50-13-1196. (A) In addition to any specific penalty provided in this article, any fish or fishing device taken or found to be in possession of any person charged with a violation of this article shall be confiscated. The fish shall be sold in the same manner as prescribed in Section 50-11-3940 for the sale of perishable items. If the person charged is convicted, the money received from such sale shall be forwarded to the Department and placed to the account of the game protection fund of the State Treasury. After conviction the fishing devices shall be sold at public auction. The sale of the fish and fishing devices shall be conducted using the procedures prescribed in Section 50-11-2080. If such person is acquitted the devices shall be returned to him along with any money that may have come from the sale of the confiscated fish.
(B) In addition to the specific penalties provided in this article and the penalties provided in subsection (A) of this section, the boat, motor and fishing gear of any person who is charged with unlawfully using or having in possession a gill net or hoop net on any freshwater lake or reservoir of the State shall be confiscated and sold at auction within the State after conviction using the procedure prescribed in Section 50-11-2080. The money received from such sale shall be forwarded to the Department and placed to the account of the game protection fund of the State Treasury. If such person is acquitted the boat, motor and fishing gear shall be returned to him. Upon conviction, the Department shall suspend such person's license or privilege to fish in this State for a period of one year from the date of conviction.
(C) In addition to the specific penalties provided in this article or the general provisions of Sections 50-13-1610 and 50-13-1650, upon the conviction of any commercial freshwater fisherman of illegal possession of game fish or the sale or traffic in game fish, the Department shall suspend such person's license or privilege to fish in this State for a period of one year from the date of conviction.
Section 50-13-1197. Any person who shall take and carry away any nongame fishing device or any fish caught and being in such device with intent to steal the device or the fish, or any person who shall tamper with a nongame fishing device with intent to damage or to make it ineffective for the purpose of taking fish, is guilty of a misdemeanor and, upon conviction, (1) for tampering with a device be fined not less than one hundred dollars nor more than two hundred dollars or imprisoned for not more than thirty days, and (2) for stealing a device or fish caught in the device be fined not less than five hundred dollars nor more than one thousand dollars or imprisoned for not more than six months or both.
Section 50-13-1198. Herring fishing is prohibited within one hundred feet of the fish lift exit channel at St. Stevens Powerhouse except with hook and line from March first through April fifteenth.
Article 7
Permanent Obstructions in Waters; Fishways and
Fish Sluices
Section 50-13-1210. No permanent obstruction of any kind or nature whatever, other than a dam for manufacturing purposes, shall be placed in any of the inland creeks, streams or waters of the State so as to obstruct the free migration of fish. Any person violating the provisions of this section is guilty of a misdemeanor and, upon conviction thereof before any court of competent jurisdiction, shall be fined in the sum of two hundred dollars or be imprisoned for a period of not less than three nor more than six months, or both, in the discretion of the court trying the case. Whenever any such permanent obstruction shall be found, any enforcement officer or any law enforcement officer may, in the name of the State, destroy or take down such obstruction or so much of it as is necessary to again permit the free migration of fish.
Section 50-13-1220. No navigable stream of this State shall be obstructed by a dam or otherwise unless there be provided a fishway in such dam or other obstruction. For violation of this section a person shall be fined not less than twenty-five dollars for each day that such obstruction shall exist without such fishway after such person shall have been notified in writing by any person that such obstruction exists.
Section 50-13-1230. All persons who have erected or may hereafter erect artificial dams across the inland creeks, rivers, streams or waterways of this State which prevent migratory fish from ascending the same, unless excused by the governing body of the county, shall construct proper fishways or ladders over the same, to be approved by the governing body of the county in which such dam is situated and should such persons refuse or fail so to do within thirty days after notice from the governing body of the county they shall be liable to a fine or penalty of five thousand dollars, recoverable by the county in which such dam has been or may be erected in a court of competent jurisdiction.
Section 50-13-1240. It shall be the duty of the governing body of the county to designate the fish sluices on the several rivers so as to leave one or more passages for fish up such rivers. Such sluices shall be sixty feet wide or, where there are two or more such sluices, they shall be, together, sixty feet wide. When they shall be so designated, it shall be lawful for any person to open such sluices. If any person shall obstruct any such sluice, when once opened, so as to prevent the free passage of fish up such sluice, and every part thereof, he shall be guilty of a public nuisance and, on conviction thereof in the court of general sessions, shall be fined one hundred dollars and shall stand committed until such fine be paid for a time not exceeding ten days, at the discretion of the court before which such conviction may take place. Whenever a fish sluice in any of such rivers shall have been designated as provided in this section, any stoppage of such sluice shall be regarded as a public nuisance and may be abated as such.
Section 50-13-1250. The governing bodies of the several counties shall designate and lay out the fish sluices but once a year and shall execute this duty on or before the first day of October whenever they shall determine to change them in any year.
Section 50-13-1260. Nothing herein contained shall be construed to give authority to the governing bodies of the several counties to designate any fish sluice through any dam erected by public authority for the improvement of the navigation of any of the rivers or to designate any fish sluice through any dam erected by individuals for the purpose of propelling any machinery when the owner of such dam shall leave open a part of the river sixty feet wide or, where the dam extends entirely across the river, shall construct therein a sufficient fish sluice sixty feet wide and shall keep the same open for and during the months of February, March and April in each year.
Article 9
Pollution and Poisoning of Waters;
Use of Explosives
Section 50-13-1410. It shall be unlawful for any person to throw, run, drain or deposit any dyestuffs, coal tar, oil, sawdust, poison or other deleterious substance in any of the waters, either fresh or salt, which are frequented by game fish within the territorial jurisdiction of this State in quantities sufficient to injure, stupefy or kill any fish or shellfish or be destructive to their spawn which may inhabit such waters, and the master or captain in charge of any boat, ship or vessel shall be responsible for the discharge of any of such substances from his vessel. Any person convicted of violating this section shall be fined not less than three hundred dollars nor more than one thousand dollars or imprisoned not less than three months nor more than one year, or both fined and imprisoned in the discretion of the court. The department shall diligently enforce this section.
Section 50-13-1415. No person shall possess, sell, offer for sale, import, bring, or cause to be brought or imported into this State, or release or place into any waters of this State any of the following plants:
(1) Water Hyacinth
(2) Hydrilla
Provided, however, that the department may issue special import permits to qualified persons for research purposes only.
The department shall prescribe the methods, control, and restrictions which are to be adhered to by any person or his agent to whom a special permit under the provisions of this section is issued. The department is authorized to promulgate such regulations as may be necessary to effectuate the provisions of this section and the department, by regulation, is specifically authorized to prohibit additional species of plants from being imported, possessed, or sold in this State when, in the discretion of the department, such species of plants are potentially dangerous.
Section 50-13-1420. It is unlawful to poison the streams or waters of the State in any manner whatsoever for the purpose of taking fish or to introduce, produce or set up electrical currents or physical shocks, pressures or disturbances therein for the purpose of taking fish. The muddying of streams or ponds or the introduction of any substance which results in making the fish sick, so that they may be caught, is hereby declared to be `poisoning' in the sense of this section. No sawdust, acid or other injurious substance shall be discharged into any of the streams of the State where fish breed or abound. For a violation of this section the person so violating it shall be fined not less than twenty-five dollars nor more than three hundred dollars or be imprisoned for not less than one day nor more than thirty days.
Section 50-13-1430. Should any person cause to flow into or be cast into any of the creeks, streams or inland waters of this State any impurities that are poisonous to fish or destructive to their spawn, such person shall, upon conviction thereof, be punished with a fine of not less than five hundred dollars or imprisonment of not less than six months in the county jail.
Section 50-13-1440. It shall be unlawful for any person to use dynamite, gun powder, lime or any other explosive in or about any of the streams or waters in this State to take or secure fish, to cause or to procure the same to be done, to aid, assist or abet anyone in so doing or to have in his possession dynamite or any other explosive or explosive device in any paddling boat, sailboat, motorboat, raft or barge usually used for fresh-water fishing in any of the rivers, lakes, streams or waters within this State. Any person using explosives for the taking of fish or having in his possession explosives in a paddling boat, motorboat, sailboat, raft or barge commonly used for fresh-water fishing in any of the rivers, lakes, streams or waters within this State shall be guilty of a misdemeanor and, upon his conviction, shall be sentenced to serve a term at hard labor on the chain gang or in the Penitentiary or to pay a fine as follows, to wit: For the first offense a period of not more than three months or a fine of not more than five hundred dollars; for the second offense a period of one year or a fine of one thousand dollars; and for the third offense a period of two years or a fine of two thousand five hundred dollars.
Section 50-13-1450. If any person is found picking up fish within two hours after they have been killed, stunned or disabled by an explosive, it shall be deemed prima facie evidence that he used explosives to take fish from such waters.
Section 50-13-1460. Any person convicted of violating any of the provisions of Section 50-13-1440 shall be prohibited from hunting or fishing within the State for a period of five years, and both his hunting and fishing license, if either has been issued to him, shall be immediately revoked upon his conviction. Any person found fishing or hunting within the State who has been convicted of violating the provisions of Section 50-13-1440 within such five-year period shall be guilty of a misdemeanor and, upon conviction therefor, shall be fined or imprisoned, in the discretion of the court.
Section 50-13-1470. Any person who sees another violating the provisions of Section 50-13-1440 and who fails to report the same to an enforcement officer, sheriff or some other law enforcement officer within the county in which such violation occurred, within two weeks thereafter, shall be guilty of a misdemeanor and, upon conviction therefor, shall be fined or imprisoned, in the discretion of the court.
Section 50-13-1480. Any person who shall swear out a warrant, give information or testify as a witness against anyone for violating Section 50-13-1440 shall not be subject to a criminal prosecution for slander or malicious prosecution, neither shall he be subject to a civil action for damages in any court of competent jurisdiction for any alleged damages to the person so accused growing out of or in connection with such use of explosives.
Article 11
Sale and Traffic in Fish
Section 50-13-1610. It shall be unlawful, at any time, to sell, offer for sale, barter, traffic in or purchase any game fish so classified under the provisions of Section 50-1-30, except as to fresh-water trout as provided in Sections 50-13-1680 and 50-13-1740, regardless of where caught. Any person violating this section is guilty of a misdemeanor and, upon conviction, shall for the first offense be fined not less than one hundred dollars nor more than three hundred dollars. For the second offense within five years of the date of conviction for the first offense, he shall be fined not less than two hundred dollars nor more than five hundred dollars and be imprisoned for thirty days. For a third offense within five years of the date of conviction for the first offense, he shall be fined not less than five hundred dollars nor more than one thousand dollars and be imprisoned for not more than thirty days. Fourth and subsequent offenses within five years of the date of conviction for the first offense shall be punished as provided for a third offense.
Section 50-13-1620. Any person who violates any provision of Section 50-13-1610 as to fresh-water trout is guilty of a misdemeanor and, upon conviction, shall be punished by a fine of not less than fifty dollars nor more than one hundred dollars or imprisonment for not less than fifteen days nor more than thirty days. Each such violation shall constitute a separate offense.
Section 50-13-1630. No person may possess, sell, offer for sale, import, bring or cause to be brought or imported into this State, or release into any waters of this State any of the following fish:
(1) Carnero or Candiru Catfish (Vandellia cirrhosa);
(2) Freshwater Electric Eel (Electrophorus electricus);
(3) White Amur or Grass Carp (Ctenopharyngodon idella);
(4) Walking Catfish, or any member of the Clariidae family (Clarias, Heteropneustea, Gymnallabes, Channallabes, or Heterobranchus genera);
(5) Piranha (All members of Serrasalmus, Rooseveltiella, and Pygocentrus genera);
(6) Stickleback;
(7) Mexican Banded Tetra;
(8) Sea Lamprey.
The department may issue special import permits to qualified persons for research purposes only. The department may issue special permits for the stocking of nonreproducing white amur or grass carp hybrids in the waters of this State.
It is unlawful to take grass carp from waters stocked as permitted by this section. Any grass carp caught must be returned to the water from which it was taken immediately.
The department shall prescribe the methods, controls, and restrictions required of any person or his agent to whom a special permit is issued. The department may promulgate regulations necessary to effectuate the provisions of this section and specifically to prohibit additional species of fish from being imported, possessed, or sold in this State when the department determines the species of fish are potentially dangerous.
Section 50-13-1640. It shall be lawful for the owner of any private pond, in the presence of and under the supervision of a representative of the department, to draw such pond and dispose of the fish caught at such drawing, by sale or otherwise. But any fish sold must be sold and disposed of at the site of the pond in the presence of a representative of the department.
Section 50-13-1650. It shall be unlawful for any person to deliver, knowingly receive for transportation or knowingly transport, by any means whatsoever, beyond the limits of this State any game fish so classified under the provisions of Section 50-1-30 caught in this State, except that a nonresident of this State who is a bona fide holder of a nonresident fishing license or a citizen of this State duly licensed to fish herein may take or carry with him from the State not over fifty game fish during any one calendar week when such fish have been caught or taken in accordance with the laws of this State. Any person violating the provisions of this section is guilty of a misdemeanor and, upon conviction, shall be fined one hundred dollars for each offense. Any person convicted of a second or subsequent violation of this section within three years of the date of conviction for the first offense shall be fined two hundred dollars and imprisoned for thirty days for each such offense.
Section 50-13-1660. It shall be lawful for any enforcement officer or other officer of the law to search, upon reasonable information, any package or container containing fish and to seize and hold such fish as evidence and declare such fish forfeited, upon conviction of the offender, and sell them to the highest bidder.
Section 50-13-1670. Nothing in Section 50-13-1650 shall be construed to prevent the shipment in interstate commerce of live fish and fish eggs for breeding or stocking purposes when such shipment shall originate outside of this State and terminate outside of this State.
Section 50-13-1680. Artificially reared and properly tagged, labeled, stamped or otherwise marked trout produced in a privately owned hatchery may be sold subject to the conditions provided in Sections 50-13-1690 to 50-13-1740 and subject to such additional rules and regulations as may be promulgated by the department.
Section 50-13-1690. Before any trout may be sold or shipped within the State, each fish must be tagged, labeled, marked or stamped, giving the following information: The hatchery in which such fish was produced, its location and address and the species of trout. This information must not be removed from the fish until the time of cooking.
Section 50-13-1700. All operators of retail markets or restaurants, cafes or other eating establishments must advertise conspicuously that the trout are imported and artificially reared, or if the trout are reared in a hatchery within the State, the advertisement must state the name and location of such hatchery. All menus must contain the fact that the trout are from privately owned hatcheries.
Section 50-13-1710. Operators of restaurants, cafes or other eating establishments and retail markets shall be responsible to the department for any violation of the provisions of Sections 50-13-1680 to 50-13-1730 on their premises. All such establishments shall be subject to inspection by agents of the department at any time and any trout not individually marked according to the provisions of Section 50-13-1690 and for which an invoice is not available shall be confiscated and the operator prosecuted.
Section 50-13-1720. When any trout are sold or shipped into this State, the shipper or seller shall furnish the department with a copy of the invoice showing the number and weight of the trout so shipped or sold and to whom such trout were shipped or sold.
Section 50-13-1730. The department may from time to time issue additional rules and regulations to further control the shipment and sale of trout in the State.
Section 50-13-1740. Any person who violates any provision provided for in Sections 50-13-1680 to 50-13-1730 is guilty of a misdemeanor and, upon conviction, shall be punished by a fine of not less than fifty dollars nor more than one hundred dollars or imprisonment of not less than fifteen nor more than thirty days. Each violation of any such provision shall constitute a separate offense.
Section 50-13-1750. Notwithstanding the provisions of Section 50-13-1610, it shall be lawful for any person to sell, offer for sale, barter and transport game fish for strictly stocking or restocking purposes if such person first obtains from the department a game fish breeder's license, the cost of which shall be twenty-five dollars annually. Such license shall be valid for the fiscal year in which issued. Applications shall be made on forms furnished by the department.
The department and its agents shall have the right to inspect the premises of the business of any person licensed hereunder. The department shall have authority to require persons licensed hereunder to keep such records as it deems necessary. No game fish more than four inches in overall length shall be sold, and all fish being transported by a licensee hereunder shall be clearly marked as to their source and species as well as any other identification which the department shall require.
Game fish sold, ordered or transported by a licensee shall be used solely for stocking or restocking purposes.
Any person violating the provisions of this section is guilty of a misdemeanor and, upon conviction, shall be fined not less than one hundred dollars. In addition to any fine, any license issued under the provisions of this section shall be suspended and no new license shall be issued to such person for at least three years from the date of conviction.
Section 50-13-1760. (A) It is illegal to sell white perch (Marone Americana) caught in this State. Only those fish imported into the State from another state may be sold, and an invoice showing the origin and the number or poundage must accompany the transporting vehicle. The invoice must be retained at the market or place of retail sale.
(B) Only fresh fish on ice with an invoice not over two weeks old may be sold lawfully. Frozen fish must not be sold. White perch may be sold only January first through May thirty-first.
(C) If a shipment of fish or portion of a shipment is sold to another dealer within a state, a copy of the original invoice must accompany the fish during the transportation and at the market place. In addition a new bill of sale must accompany the fish showing them as a portion of the fish bought under the original sale from out-of-state with the original invoice number included.
(D) A person violating this section is guilty of a misdemeanor and, upon conviction, must be fined not more than two hundred dollars or imprisoned not more than thirty days.
Article 13
Fish Hatcheries and Sanctuaries; Propagation
Section 50-13-1910. The State hereby assents to the provisions of the act of Congress entitled `An Act to Provide that the United States Shall Aid the States in Fish Restoration and Management Projects, and for Other Purposes,' approved August 9, 1950 (Public Law No. 681, 81st Congress), and the department shall perform such acts as may be necessary to the conduct and establishment of cooperative fish restoration projects, as defined in such act of Congress, in compliance with the act and rules and regulations promulgated by the Secretary of the Interior thereunder. The amounts necessary for the State to provide, in order to receive the benefits of such act, shall be paid from the fees collected by the Department from the sale of resident fishing licenses and a separate fund for this purpose shall be set up.
Section 50-13-1920. The department may acquire a sufficient number of acres of land in close proximity to any dam, artificial lake, impounded water, or stream for the purpose of establishing fish hatcheries or fish nurseries. The board may exercise the power of eminent domain if necessary to accomplish this purpose.
Section 50-13-1930. The department may lease or purchase a suitable number of acres of land in this State for the purpose of allowing the United States Fish and Wildlife Service to establish thereon fish hatcheries. The expense of leasing or buying such lands and the protection and distribution shall be paid out of the game protection fund.
Section 50-13-1935. The department shall charge fees to applicants for the stocking of fish in private ponds, lakes, or other nonnavigable waters sufficient to cover all costs of operating the Cheraw Fish Hatchery Private Pond Fish Stocking Programs.
Section 50-13-1936. In the event the federal government ceases to operate the Walhalla Fish Hatchery, the department may accept and maintain operations of the facility by charging a fee that is sufficient to cover the cost of operating the facility.
Section 50-13-1940. The distribution of fish raised in the hatchery on the lands donated in Greenville County by J. Harvey Cleveland shall be under the direction and supervision of the department.
Section 50-13-1950. The department shall, without any cost to the State whatsoever, designate and establish sanctuaries where fish may breed unmolested, in the manner and subject to the provisions in this article.
Section 50-13-1960. The department may select any place upon any river or stream within this State as a fish sanctuary. Upon making such selection the board, upon approval in writing of a majority of the members of the county legislative delegation from the county in which such proposed fish sanctuary is to be located, may designate and set apart such place as a fish sanctuary. No one sanctuary shall exceed two miles in length along any river or stream. When such sanctuary shall be so designated and set apart, the board shall have it adequately and conspicuously marked and shall designate the limits thereof in all directions.
Section 50-13-1970. Such sanctuaries may be set apart in any lake or pond upon condition that the landowner shall enter into an agreement with the department to set aside and turn over to the State for such purpose any such lake or pond.
Section 50-13-1980. When a fish sanctuary is established it continues as a fish sanctuary until it is directed to be closed by the owner of the land in the case of private property or in the case of public property by a majority of the legislative delegation of the county in which it is located and there may be no fishing or trespassing upon any waters established as a sanctuary. The department may post signs within the sanctuary to identify it as a sanctuary and may prosecute a person fishing or trespassing on the sanctuary.
Section 50-13-1990. Any person fishing or trespassing upon any property or waters so established as a sanctuary by the department is guilty of a misdemeanor and, upon conviction, shall be punished by a fine not exceeding two hundred dollars or imprisonment not more than thirty days. In cases where magistrates have countywide territorial jurisdiction, the magistrate closest to the sanctuary where the offense occurred shall have jurisdiction of the case. In counties where magistrates are given separate and exclusive territorial jurisdiction the case shall be tried as provided in Section 22-3-530.
Section 50-13-2010. There is created a fish sanctuary in Marion County to be known as Shelley Lake.
It is unlawful for any person to fish, seine, net, or otherwise enter upon Shelley Lake in Marion County, located one-half mile south of Red Bluff Landing on the west side of the Little Pee Dee River and surrounded by land owned by the Palmetto Hardwood Company. Any person violating the provisions of this section is guilty of a misdemeanor and, upon conviction, must be punished by a fine of not less than twenty-five dollars nor more than one hundred dollars or imprisonment of not less than fifteen nor more than thirty days.
Section 50-13-2015. (A) A fish sanctuary is established in the St. Stephen Rediversion Canal between the Corps of Engineers' powerhouse and the Atlantic Coastline Railroad Bridge. It is unlawful for a person to fish in the sanctuary except as provided in this section.
(B) From March first to May first each year, fishing for nongame fish is allowed from the Atlantic Coastline Bridge upstream to a point marked by signs or buoys, or both. This location must be marked by the department after consultation with and with the permission of the United States Army Corps of Engineers. Fishing is allowed from six p.m. to twelve midnight. The area otherwise is closed to all fishing and boating activities.
(C) The catch limit is five hundred pounds of fish or one hundred dozen fish a boat a day. Game fish taken must be returned immediately to the water. All fish, except those used for live bait, must be packed in boxes with a one hundred pound capacity before crossing back under the railroad bridge.
(D) No fishing devices may be used except cast nets, dip nets, or drop nets. The diameter of the dip or drop nets used may not exceed six feet. No nets may be operated by the use of mechanical devices such as winches, cranes, or pulleys.
(E) A person violating this section is guilty of a misdemeanor and, upon conviction, must be fined not less than twenty-five nor more than one hundred dollars or imprisoned not less than fifteen nor more than thirty days.
Section 50-13-2020. The department has management control over the lakes and ponds which it owns or leases. It may establish the terms and conditions under which the public may use the lakes and ponds for fishing, boating, picnicking, and other related activities. Before taking effect, the conditions and terms must be approved by the board and a majority of the county legislative delegation of the county where the lake or pond is located and published in a newspaper of general circulation in the county. Any person violating the terms and conditions of this section is guilty of a misdemeanor and, upon conviction, must be fined not more than two hundred dollars or imprisoned for not more than thirty days."
Definitions and obsolete language deleted; commission changed to department or board; names revised
SECTION 1264. Chapter 15, Title 50 of the 1976 Code is amended to read:
"CHAPTER 15
Nongame and Endangered Species
Conservation Act
Section 50-15-10. This chapter may be cited as the `South Carolina Nongame and Endangered Species Conservation Act.'
Section 50-15-20. As used in this chapter:
(1) `Ecosystem' means a system of living organisms and their environment, each influencing the existence of the other and both necessary for the maintenance of life.
(2) `Endangered species' means any species or subspecies of wildlife whose prospects of survival or recruitment within the State are in jeopardy or are likely within the foreseeable future to become so due to any of the following factors:
(a) the destruction, drastic modification, or severe curtailment of its habitat, or
(b) its over-utilization for scientific, commercial or sporting purposes, or
(c) the effect on it of disease, pollution, or predation, or
(d) other natural or manmade factors affecting its prospects of survival or recruitment within the State, or
(e) any combination of the foregoing factors. The term shall also be deemed to include any species or subspecies of fish or wildlife appearing on the United States' List of Endangered Native Fish and Wildlife as it appears on July 2, 1974 (Part 17 of Title 50, Code of Federal Regulations, Appendix D) as well as any species or subspecies of fish and wildlife appearing on the United States' List of Endangered Foreign Fish and Wildlife (Part 17 of Title 50 of the Code of Federal Regulations, Appendix A), as such list may be modified hereafter.
(3) `Management' means the collection and application of biological information for the purposes of increasing the number of individuals within species and populations of wildlife up to the optimum carrying capacity of their habitat and maintaining such levels. The term includes the entire range of activities that constitute a modern scientific resource program including, but not limited to, research, census, law enforcement, habitat acquisition and improvement, and education. Also included within the term, when and where appropriate, is the periodic or total protection of species or populations as well as regulated taking.
(4) `Nongame species' means any wild mammal, bird, amphibian, reptile, fish, mollusk, crustacean, or other wild animal not otherwise legally classified by statute or regulation of this State as a game species.
(5) `Optimum carrying capacity' means that point at which a given habitat can support healthy populations of wildlife species, having regard to the total ecosystem, without diminishing the ability of the habitat to continue that function.
(6) `Person' means any individual, firm, corporation, association or partnership.
(7) `Take' means to harass, hunt, capture, or kill or attempt to harass, hunt, capture, or kill wildlife.
(8) `Wildlife' means any wild mammal, bird, reptile, amphibian, fish, mollusk, crustacean or other wild animal or any part, product, egg or offspring or the dead body or parts thereof.
Section 50-15-30. (a) The department shall conduct investigations on nongame wildlife in order to develop information relating to population, distribution, habitat, needs, limiting factors, and other biological and ecological data to determine management measures necessary for their continued ability to sustain themselves successfully. On the basis of such determinations the department shall issue proposed regulations and develop management programs designed to ensure the continued ability of nongame wildlife to perpetuate themselves successfully. Such proposed regulations shall set forth species or subspecies of nongame wildlife which the department deems in need of management pursuant to this section, giving their common and scientific names by species or subspecies. The department shall conduct ongoing investigations of nongame wildlife and may from time to time amend such regulations by adding or deleting therefrom species or subspecies of nongame wildlife.
(b) The department shall by such regulations establish proposed limitations relating to taking, possession, transportation, exportation, processing, sale or offer for sale, or shipment as may be deemed necessary to manage such nongame wildlife.
Such regulation shall become effective sixty days after being proposed during which period public comment shall be solicited and received. The board may hold a public hearing if deemed appropriate. On the basis of public comments received or the testimony at any such hearing the department may make such changes in the proposed regulation as are consistent with effective management of nongame wildlife.
(c) Except as provided in regulations issued by the department, it shall be unlawful for any person to take, possess, transport, export, process, sell or offer for sale or ship nongame wildlife deemed by the department to be in need of management pursuant to this section. Subject to the same exception, it shall further be unlawful for any common or contract carrier knowingly to transport or receive for shipment nongame wildlife deemed by the department to be in need of management pursuant to this section.
Section 50-15-40. (a) On the basis of investigations on nongame wildlife provided for in Section 50-15-30 and other available scientific and commercial data, and after consultation with other State agencies, appropriate Federal agencies, and other interested persons and organizations, but not later than one year after July 2, 1974, the department shall by regulation propose a list of those species or subspecies of wildlife indigenous to the State which are determined to be endangered within this State, giving their common and scientific names by species and subspecies. Such regulation shall become effective sixty days after being proposed during which period public comment shall be solicited and received. The board may hold a public hearing if deemed appropriate. On the basis of public comments received or the testimony at any such hearing, the department may add to such proposed list additional species or subspecies which are determined to be endangered within the State or delete therefrom such species or subspecies which are determined not to be endangered within the State.
(b) The board shall conduct a review of the state list of endangered species within not more than two years from its effective date and every two years thereafter and may amend the list by such additions or deletions as are deemed appropriate. The board shall submit to the Governor a summary report of the data used in support of all amendments to the state list during the preceding biennium.
(c) Except as otherwise provided in this chapter, it shall be unlawful for any person to take, possess, transport, export, process, sell or offer for sale or ship, and for any common or contract carrier knowingly to transport or receive for shipment any species or subspecies of wildlife appearing on any of the following lists:
(1) the list of wildlife indigenous to the State determined to be endangered within the State pursuant to subsection (a);
(2) the United States' List of Endangered Native Fish and Wildlife as it appears on July 2, 1974 (Part 17 of Title 50, Code of Federal Regulations, Appendix D); and
(3) the United States' List of Endangered Foreign Fish and Wildlife (Part 17 of Title 50, Code of Federal Regulations, Appendix A), as such list may be modified hereafter; provided, that any species or subspecies of wildlife appearing on any of the foregoing lists which enters the State from another state or from a point outside the territorial limits of the United States and which is transported across the State destined for a point beyond the State may be so entered and transported without restriction in accordance with the terms of any Federal permit or permit issued under the laws or regulations of another state.
(d) In the event the United States' List of Endangered Native Fish and Wildlife is modified subsequent to July 2, 1974 by additions or deletions, such modifications whether or not involving species or subspecies indigenous to the State may be accepted as binding under subsection (c) if, after the type of scientific determination described in subsection (a), the department by regulation accepts such modification for the State. Any such regulation shall be effective upon promulgation.
Section 50-15-50. (a) The board shall establish such programs, including acquisition of land or aquatic habitat, as are deemed necessary for management of nongame and endangered wildlife. The board shall utilize all authority vested in the department to carry out the purposes of this section.
(b) In carrying out programs authorized by this section, the department may enter into agreements with federal agencies, political subdivisions of the State, or with private persons for administration and management of any area established under this section or utilized for management of nongame or endangered wildlife.
(c) The Governor shall encourage other state and federal agencies to utilize their authorities in furtherance of the purposes of this section.
(d) The department may permit, under such terms and conditions as may be prescribed by regulation, the taking, possession, transportation, exportation or shipment of species or subspecies of wildlife which appear on the state list of endangered species, on the United States' List of Endangered Native Fish and Wildlife, as amended and accepted in accordance with Section 50-15-40(d), or on the United States' List of Endangered Foreign Fish and Wildlife, as such list may be modified hereafter, for scientific, zoological, or educational purposes, for propagation in captivity of such wildlife, or for other special purposes.
(e) Upon good cause shown, and where necessary to alleviate damage to property or to protect human health, endangered species may be removed, captured or destroyed but only pursuant to permit issued by the department and, where possible, by or under the supervision of an agent of the department; provided, that endangered species may be removed, captured, or destroyed without permit by any person in emergency situations involving an immediate threat to human life. Provisions for removal, capture, or destruction of nongame wildlife for the purposes set forth above shall be set forth in regulations issued by the department pursuant to Section 50-15-30(a).
Section 50-15-60. The costs of programs established under this chapter must be borne by the general fund and must be included in the annual appropriations act except that the department shall issue permits, at a cost of thirty-five dollars each, for the sale of alligator products. The department shall collect the proceeds from the sale of permits and the proceeds from the sale of alligator products for the costs of administering the Alligator Control Management Program. These funds must be deposited to the credit of the Game Protection Fund of the State Treasury and administered according to the provisions of Section 50-1-150.
Section 50-15-70. The department shall promulgate such regulations as are necessary to carry out the purposes of this chapter.
Section 50-15-80. (a) Any person who violates the provisions of Section 50-15-30(c), or any regulations issued under Section 50-15-30 or whoever fails to procure or violates the terms of any permit issued thereunder is guilty of a misdemeanor and, upon conviction, shall be fined not more than five hundred dollars or be imprisoned not more than six months, or both.
(b) Any person who violates the provisions of Section 50-15-40(c), or any regulations issued pursuant thereto or whoever fails to procure or violates the terms of any permit issued under Section 50-15-50(d) and (e) is guilty of a misdemeanor and upon conviction shall be fined one thousand dollars or be imprisoned not more than one year, or both.
(c) Any enforcement officer employed and authorized by the department or any police officer of the State or of any municipality or county within the State shall have authority to conduct searches as provided by law, and to execute a warrant to search for and seize any equipment, business records, merchandise or wildlife taken, used, or possessed in connection with a violation of any section of this chapter. Any such officer or agency may, without a warrant, arrest any person who such officer or agent has probable cause to believe is violating, in his presence or view, any such section, or any regulation or permit provided for by this chapter. An officer or agent who has made an arrest of a person in connection with any such violation may search such person or business records at the time of arrest and seize any wildlife, records, or property taken, or used, in connection with any such violation.
(d) Equipment, merchandise, wildlife, or records seized under the provisions of subsection (c) shall be held by an officer or agent of the Department pending disposition of court proceedings, and thereafter be forfeited to the State for destruction or disposition as the board may deem appropriate; provided, that prior to forfeiture the board may direct the transfer of wildlife so seized to a qualified zoological, educational, or scientific institution for safekeeping, costs thereof to be assessable to the defendant. The department is authorized to promulgate regulations to implement this subsection.
(e) Any person who violates regulations issued under Section 50-15-30 pertaining to the possession, storage, transportation, exportation, processing, sale, or offering for sale of any American alligator (Alligator mississippiensis) or any parts or products of an alligator or any common or contract carrier who knowingly violates, transports, or receives for shipment any American alligator parts or products must upon conviction be fined not less than one thousand dollars nor more than five thousand dollars or be imprisoned for not more than one year.
Section 50-15-90. None of the provisions of this chapter shall be construed to apply retroactively or to prohibit importation into the State of wildlife which may be lawfully imported into the United States or lawfully taken or removed from another state or to prohibit entry into the State or possession, transportation, exportation, processing, sale or offer for sale or shipment of any wildlife whose species or subspecies is deemed to be threatened with statewide extinction in this State but not in the state where originally taken if the person engaging therein demonstrates by substantial evidence that such wildlife was lawfully taken or removed from such state; provided, that this section shall not be construed to permit the possession, transportation, exportation, processing, sale or offer for sale or shipment within this State of wildlife on the United States' List of Endangered Native Fish and Wildlife, as amended and accepted in accordance with Section 50-15-40(d), except as permitted in the proviso to Section 50-15-40(c) and Section 50-15-50(d)."
Certain divisions and commissions changed to department or board; names revised
SECTION 1265. Chapter 17, Title 50 of the 1976 Code is amended to read:
"CHAPTER 17
Coastal Fisheries Laws
Article 1
General Provisions
Section 50-17-10. This chapter may be cited as the `Coastal Fisheries Laws'.
Section 50-17-15. As used in this chapter:
(1) `Fish' means finfish, shellfish, crustaceans, turtles, and terrapin.
(2) `Shellfish' means oysters, clams, mussels, escallops, and all immobile fish having shells.
(3) `Crustacean' means crabs, shrimp, crayfish, stone crabs, and any other mobile fish having a shell.
(4) `Bottoms' means all of the tidelands of the State covered by water when at the stage of ordinary high tide.
(5) `Fishing' and `fisheries' mean all operations involved in taking or catching fish and in preparing them or transporting them to market.
(6) `Commercial purposes' means being engaged in the commercial fisheries industry with the intent to derive a livelihood or a substantial portion of livelihood from the industry.
(7) `State resident' has the same meaning as provided in Section 50-9-30.
(8) `Mariculture' means the controlled cultivation in confinement of marine and estuarine organisms.
Section 50-17-20. The provisions of this chapter do not apply to fish or fishing in the freshwaters of this State except as provided in Article 8 of this chapter.
Section 50-17-30. The saltwater-freshwater dividing lines on the rivers listed below are as defined in this section and all waters of the rivers and their tributaries, streams, and estuaries lying seaward of the dividing lines are considered saltwaters, and all waters lying landward or upstream from all dividing lines are considered freshwaters for purposes of licensing and regulating commercial and recreational fishing. The department shall erect and maintain signs adequately identifying the dividing lines.
(a) On the Savannah River the dividing line is the old track bed of the Seaboard Railroad located approximately 1.75 miles upstream from the U.S. Highway 17A bridge across the Savannah River.
(b) On the Wright and Ashepoo Rivers the dividing line is the old Seaboard Railroad track bed.
(c) On the New River the dividing line is at Cook's Landing.
(d) On the Coosawhatchie, Tullifinny, Pocataligo, and Combahee Rivers the dividing line is U.S. Highway 17.
(e) On the Edisto River the dividing line is the old Seaboard Railroad track bed near Matthews Cut Canal.
(f) On the Ashley River the dividing line is the confluence of Popper Dam Creek directly across from Magnolia Gardens.
(g) On the Cooper River the dividing line is the confluence of Goose Creek, but any provision of law pertaining to commercial crab fishing under Article 7 of this chapter shall apply in the waters of the Cooper River from Goose Creek inland to the point at which the old Back River Channel intersects the Cooper River below the Bushy Park Dam.
(h) On the Awendaw Creek, the North and South Santee Rivers, the Sampit River, the Black River, the Pee Dee River, the Waccamaw River, and the Little River the dividing line is U.S. Highway 17.
(i) On the Inland Waterway in Horry County the dividing line is the bridge across the Inland Waterway at Nixon's Cross Road where S.C. Highway 9 and U.S. Highway 17 intersect.
Section 50-17-35. (A) It is unlawful to catch fish on the Combahee River from U.S. Highway No. 17 seaward using traps, trotlines, or nets.
(B) Any person violating the provisions of this section is guilty of a misdemeanor and, upon conviction, must be fined not less than twenty-five dollars nor more than one hundred dollars or be imprisoned for not more than thirty days.
Section 50-17-40. The waters and bottoms of the bays, rivers, creeks, and marshes within the State or within the territorial sea as shown on NOAA Charts 11535, 11531, 11521, and 11513, not heretofore conveyed by grant from the General Assembly or lawful compact with the State, continue and remain as a common for the people of the State for the taking of fish, subject to the provisions of this chapter and any future act that may be passed, except that this section is not intended to regulate fish or fishing in the freshwaters of this State.
Section 50-17-50. The department may prescribe and require permits of persons actually engaged in the taking of fish, shellfish, crustaceans, or other marine life in the saltwaters of this State for experimental commercial or scientific purposes not otherwise provided for by state law or departmental regulations. Permits issued for experimental commercial purposes may be for no more than two years and may not be renewed. Permits issued pursuant to this section may include provisions as to the areas, times, seasons, types of fishing equipment, species taken, catch reporting requirements, and other conditions as the department determines necessary. The department may issue special collecting permits without charge to qualified scientists, students, and other persons actually engaged in the study of marine biology. Marine life collected by persons issued special scientific permits under this section may not be used for personal consumption or for commercial purposes. Any person violating the provisions of this section is guilty of a misdemeanor and, upon conviction, must be fined not more than two hundred dollars or imprisoned for not more than thirty days. In addition, any person found guilty of a violation of any of the conditions or requirements of a permit issued under this section or convicted of a violation of applicable conservation laws or regulations, shall have the permit issued to him revoked or suspended for thirty days. Any boat, motor, or fishing equipment used by a person engaged in the taking of fish, shellfish, or other marine life without a permit as required by the department under this section or during the period which his permit has been suspended must be seized and, upon conviction, sold or redeemed as provided for in Section 50-17-650.
Section 50-17-60. It is unlawful for any person, without authority from the department, to erect any sign over or on any state shellfish bottom. Any person violating the provisions of this section is guilty of a misdemeanor and, upon conviction, must be punished as provided in Section 50-17-100.
Section 50-17-65. Any person removing, injuring, defacing, or in any way disturbing the signs, buoys, or other appliances used by the department in marking restricted areas or bottoms or used by permittees of bottoms in marking the permitted areas or who injures or destroys any boat or property used by the department or any employee of the department is guilty of a misdemeanor and must be punished as provided in Section 50-17-100.
Section 50-17-70. Any boat or vessel engaged in fishing is required to heave to, allow boarding, and cooperate in every reasonable way with the enforcement officers of the department. The captain and crew members of any boat violating this section is guilty of a misdemeanor and, upon conviction, must be fined one thousand dollars or imprisoned for not more than thirty days.
Section 50-17-80. It is unlawful to fish from a boat within one hundred fifty feet of commercial fishing piers extending into the Atlantic Ocean. Any person violating the provisions of this section is guilty of a misdemeanor and, upon conviction, must be fined not more than two hundred dollars or imprisoned for not more than thirty days.
Section 50-17-85. (A) It is unlawful to take or catch fish or other marine life by means of a spear, gig, bangstick, or other similar device within one hundred yards of the south ocean jetty at the entrance to Murrells Inlet. For the purposes of this subsection, a bangstick is defined as any device containing a pistol, rifle, shotgun, shell, or other explosive charge, which is mounted on a spear, pole, or other contrivance which is detonated to stun or kill fish or other marine life.
(B) Scuba diving, skin diving, and swimming within one hundred yards of the south ocean jetty at the entrance to Murrells Inlet is prohibited.
(C) The penalty for violating the provisions of this section is as prescribed in Section 50-17-100.
Section 50-17-90. In making determinations authorized by this chapter pertaining to the opening and closing of fishing seasons, regulation of fishing areas, times, equipment, and effort, the department shall consider:
(1) current condition and trends of the species or stocks involved;
(2) environmental factors, including water quality and climatological data;
(3) biological data, including abundance, size, and distribution of the species involved;
(4) economic conditions, including market value;
(5) potential impacts upon fishermen and other resource users; and
(6) other factors pertinent to the management and wise utilization of fishery resources.
Public notice of the opening or closing of any coastal waters or bottoms as authorized by this chapter must be given at least twenty-four hours prior to any action being taken. The department shall use all means feasible to inform interested parties, including direct mail to license holders involved, posting of notices in public places, local newspapers of general circulation, news releases, and personal and telephone communications.
Section 50-17-95. It is unlawful to knowingly have in one's possession or to land or sell in this State any species of fish taken by means of a bangstick or similar device. For the purposes of this section, a bangstick is defined as any device containing a pistol, rifle, shotgun shell, or other explosive charge, which is mounted on a spear, pole, or other contrivance which is detonated to stun or kill fish.
Section 50-17-100. Any person violating any of the provisions of this chapter, except for those sections providing penalties, upon conviction, must be punished by a fine of not less than twenty-five dollars nor more than two hundred dollars or by imprisonment for not less than ten days nor more than thirty days for the first offense. For the second offense, the penalty is not less than fifty dollars nor more than two hundred dollars or by imprisonment for not less than twenty days nor more than thirty days. For the third offense, the penalty is a fine of not less than one hundred dollars nor more than five hundred dollars or imprisonment for not less than sixty days nor more than six months. In determining the applicable sentence to be imposed under the provisions of this section, one offense for each year that elapses subsequent to any offense for which he has been convicted must be eradicated and the offender must be sentenced accordingly.
Section 50-17-105. It is unlawful for a person or corporation to display a wild caught or captive-bred mammal of the order Cetacean (dolphins and whales). An attempt should be made by the department's South Carolina Marine Mammal Stranding Network to rehabilitate any living Cetacean that becomes beach stranded. Following rehabilitation the Cetacean must be released into native South Carolina waters within a reasonable time. A person violating this section is guilty of a misdemeanor and, upon conviction, must be fined not more than one thousand dollars or imprisoned for not more than six months.
Article 2
Licenses and Taxes
Section 50-17-110. An annual license for the year beginning July first is required of each person registered as captain or master of a trawling vessel under the provisions of Section 50-17-150. The fee for the license is twenty dollars.
Section 50-17-120. An annual license fee of twenty-five dollars and fifty cents is required of any person who harvests shellfish for commercial purposes from state bottoms not under permit for shellfish culture or mariculture as provided in Section 50-17-310. Fifty cents of this fee may be retained by the issuing agent and the balance must be remitted to the Marine Resources Division of the department.
All funds derived from the sale of licenses under this section must be deposited in a special fund to support the public shellfish program of the Marine Resources Division of the department.
Section 50-17-130. The department may issue no more than a cumulative total of sixty licenses for the use of set or channel nets in any one year. Applicants who held set or channel net licenses for the previous fiscal year and who were not in violation of applicable conservation laws or regulations have preference for licenses. Set or channel net licenses must be applied for in person. Only one permit may be issued to any individual. No person may fish more than one set or channel net at any one time and any net left unattended must have affixed a floating marker with the name of the permit holder and permit number printed on the float. No person may use a set or channel net without a license, and he must have a valid set or channel net license in possession. The fee for each set or channel net license is two hundred fifty dollars a year. No set or channel net license may be issued to any person under the age of sixteen years. Any person violating the provisions of this section, upon conviction, must be punished as provided in Section 50-17-470.
Section 50-17-140. When hand seines are used for the catching of shrimp for bait or for family consumption, the hand seines, in order to be exempt from license taxes, must not exceed forty feet in length.
Section 50-17-150. All owners of shrimp, fish, and crab trawling boats who are residents of this State and who have such boats registered in this State, before operating the boats in the waters of this State, shall obtain a license for the boat and pay seventy-five dollars for each boat licensed.
All owners of shrimp, fish, and crab trawling boats who are nonresidents of this State, before operating the boats in the waters of this State, shall secure a license for each boat, the fee for which license is three hundred dollars.
The license must be in such form and obtained in such manner as the department may direct. Only one boat license is required to be taken out on a boat in any one year regardless of whether the boat is used in trawling for crabs, fish, shrimp, or a combination thereof.
At the time of securing the licenses for any such boat the owner thereof must file with the department a sworn statement giving the name and address of the master or captain of the boat.
The captain of a boat operating under this section is required to obtain the captain's license required under Section 50-17-110 and all fish trawling boats are required to have a permit for such activity from the department as required by the regulations of the department. The boat owner operating under this section is not required to obtain the powerboat license under Section 50-17-210.
In addition to punishment provided for in Section 50-17-280, any boat trawling in the waters of this State, without first being licensed, or without first having a permit, must be confiscated by the department with its rigging and equipment and sold at public sale to the highest bidder, after giving ten days' notice of the sale in a newspaper published in that county. When the vessel is of greater value than ten thousand dollars the owner at any time before sale may redeem it by paying ten thousand dollars. If the vessel is of lesser value than ten thousand dollars, the owner at any time before sale may redeem it by paying its retail value as set by the department.
Section 50-17-155. Every boat licensed by the department to trawl for shrimp in this State, at the time of the issuance of the license, must be assigned by the department a number under which the boat must be registered and operated. The number assigned to the boat must be of a size and shape as may be furnished by the department and must be displayed as to be clearly visible from either side of the vessel.
Section 50-17-160. (A) Any boat or vessel engaged in trawling, dragging, or towing any net, dredge, or other device for the taking of whelks (conchs) in the legal trawling areas of this State must have a valid trawler's license as provided under Section 50-17-150. In addition, any such boat or vessel must have in possession a valid permit for that purpose issued by the department. The permit requirements specified do not apply to boats or vessels engaged in harvesting shrimp with shrimp nets having a mesh size of less than two inches, stretched, during the open shrimp trawling season.
(B) Permits issued under this section may include specifications as to lawful fishing areas, minimum size requirements, mesh size of nets and other devices, fishing times or periods, species which may be retained for sale, and catch reporting requirements. The department may limit the number of permits issued if a limitation is determined to be necessary in the interest of sound fisheries management.
(C) The provisions of this section do not apply to the use of dredges, escalator harvesters, or other equipment for taking oysters and hard clams in accordance with other provisions of law and departmental regulations.
(D) The penalty for violations of the provisions of this section is the same as prescribed in Section 50-17-100. In addition, any permits issued, upon conviction of a permittee for a violation of this section, may be suspended or revoked by the department. Any boat or vessel found operating during the period for which its permit has been suspended or operating after its permit has been revoked must be seized and disposed of as provided under Section 50-17-650.
Section 50-17-165. (A) The taking or possessing of horseshoe crabs (Limulus polyphemus) from the waters and bottoms of the State is lawful only under a permit issued by the department as prescribed in this section. The lawful hours to trawl for horseshoe crabs are as provided in Section 50-17-640.
(B) A person who catches, takes, or possesses a horseshoe crab or its parts other than for a scientific purpose as provided in Section 50-17-50 must have a valid permit issued by the department and must obtain the individual licenses required by this article. A boat or vessel used by a permittee engaged in trawling, dragging, towing, or fishing with a net, a dredge, a trap, or other commercial fishing device must be licensed as required under this article. However, the catching or capture of horseshoe crabs incidentally or inadvertently during legal fishing operations for other species of marine fish or invertebrates does not violate this section if the horseshoe crabs immediately are returned to the water unharmed.
(C) (1) Permits issued under this section may include provisions as to:
(a) lawful fishing areas;
(b) minimum size requirements for horseshoe crabs;
(c) mesh size and dimensions of nets and other harvesting devices;
(d) bycatch requirements;
(e) fishing times or periods;
(f) catch reporting requirements;
(g) other conditions the department determines.
(2) In areas closed to trawling or other fishing activities the department may permit the taking of horseshoe crabs but shall limit fishing equipment and methods to trawls or devices specifically designed for taking horseshoe crabs.
(D) Horseshoe crabs from which blood is collected for production of amebocyte lysate must be handled so as to minimize injury to the crab. Horseshoe crabs collected in South Carolina must be returned unharmed to state waters of comparable salinity and water quality as soon as possible after bleeding.
(E) The penalties for a violation of this section, upon conviction, are as prescribed in Section 50-17-100. Upon the conviction of a permittee for a violation of this section or a requirement of a permit, his permit may be suspended or revoked by the department. If a person operates a boat or vessel pursuant to this section when his permit is suspended or revoked, the boat or vessel must be seized and disposed of as provided under Section 50-17-650.
Section 50-17-170. The application executed by an applicant for a shrimp or crab boat license must contain a statement under oath that he is a resident or nonresident.
Section 50-17-180. For purposes of this article:
(1) Primary wholesale seafood dealer is a person who buys or receives fresh or frozen saltwater fishery products taken or landed in this State from fishermen or harvesters and sells, transfers, ships, or consigns the products to other wholesalers or retailers but does not sell exclusively to consumers.
(2) A retail seafood dealer is a person who sells fresh or frozen saltwater fishery products directly to the consumer, not for resale.
(3) Saltwater fishery products means molluscan shellfish, crustaceans, finfish, and any other marine, estuarine, or anadromous species.
A qualified person who meets the license and other requirements of this article and other applicable statutes and regulations may operate as both a wholesale and retail seafood dealer.
A person, before engaging in business or operating as a primary wholesale seafood dealer, shall obtain a license from the department upon payment of a fee of fifty dollars. Any fisherman who sells his catch to a person required to have a primary wholesale dealer license under this section shall obtain an annual land and sell license from the department, the fee for which is twenty-five dollars. The license is not required of persons licensed under Section 50-17-110 who sell their catch exclusively to a primary wholesale seafood dealer. Any person who takes saltwater fishery products and sells his catch shall sell the catch only to a licensed wholesale seafood dealer or must be a licensed wholesale seafood dealer himself. All saltwater fishery products to be used for commercial purposes caught or taken in state waters and landed in this State or landed by a fishing vessel of any type regardless of where taken must be delivered to a primary wholesale seafood dealer licensed under this section, either for direct sale or for handling, packing, processing, or shipping. It is unlawful for a person required to have a primary wholesale seafood dealer license to purchase or receive saltwater fishery products landed in this State from any fisherman not licensed under Section 50-17-110, or licensed under this section. The provisions of this section do not apply to properly licensed persons engaged only in the taking or sale of live bait.
All primary wholesale seafood dealers licensed under this section shall have a permanent, nonmobile establishment or packing house with facilities for the proper handling, storage, and sanitation of seafood products. A separate primary wholesale dealer's license is required for each establishment or business owned or operated by a person.
Roadside vendors, transient dealers, or peddlers operating from mobile vehicles, roadside stands, or other temporary locations who sell or offer for sale saltwater fishery products are retail dealers, who shall receive or purchase the products only from licensed primary wholesale dealers or other retailers, and shall comply with the retail license and tax requirements provided under Title 12, Chapter 35.
Any person driving or operating a vehicle transporting a shipment or load of fresh or frozen saltwater fishery products and any person selling or offering for sale the products shall have in possession dated bills of lading, invoices, receipts, bills of sale, or similar documents showing the quantity of each species or type of seafood transported or sold and the name and address of the licensed wholesale seafood dealer or harvester from whom the products were purchased or received. The proof is not required of a commercial fisherman transporting his catch to a licensed primary wholesale seafood dealer, but he shall have in his possession all licenses, permits, and tags required by law for the harvest, transporting, and sale of saltwater fishery products.
Any person violating the provisions of this section is guilty of a misdemeanor and, upon conviction, must be fined two hundred dollars or imprisoned for not more than thirty days. In addition, any catch, load, or shipment of saltwater fishery products in possession or being transported by any person violating the provisions of this section may be seized and sold, with the proceeds held pending the final disposition of the case.
Section 50-17-190. It is unlawful for any person or any transportation agency or carrier to transport fresh saltwater fish or fisheries products without having with the shipment a shipping certificate as required by the department.
Section 50-17-200. Any person engaged in selling any marine fisheries product as bait first must obtain from the department a license, the annual fee for which is five dollars.
Section 50-17-210. Any powerboat or self-propelled barge or lighter used for commercial fishing or using or transporting commercial fishing equipment not provided for in Section 50-17-150 must obtain from the department an annual license for (1) boats or vessels, up to but not over eighteen feet in length, in the amount of twenty dollars; (2) boats or vessels, over eighteen feet in length, in the amount of twenty-five dollars.
License plates issued under this section must be displayed in such a manner as to be visible from both sides of the boat. Any boat license required by this section must be issued in the name of the owner of the vessel who shall apply in person and specify the type and quantities of fishing gear to be used, the name of the captain or operator, and such other information as the department may require.
In addition to the boat license, a license fee of ten dollars is required for each type of fishing equipment or gear specified on the license application. For gill nets, haul seines, trammel nets, and fish seines a ten-dollar license fee is required for each one hundred yards of net or fraction thereof. Each individual net is required to be licensed regardless of length.
Commercial fishing equipment means any type of net, seine, trap, pot, tongs, dredge, trotline, rake, or other device used to take fish, except for hook and line, bait minnow traps, drop nets, dip nets, or equipment specifically exempt from the license requirements of this section by other provisions of law. Any person may set not more than two crab pots with his name attached to the float for his personal use without obtaining a license under this section.
Section 50-17-215. Any person using or transporting commercial fishing equipment in the waters of this State in an unpowered boat or using commercial fishing equipment without a boat is required to purchase from the department an annual license. The license fee for each type of commercial fishing equipment or gear is the same as that specified under Section 50-17-210.
Section 50-17-220. Persons using cast nets for noncommercial purposes except as provided in Section 50-17-660 or hand tongs for harvesting oysters are exempt from the license provisions of Sections 50-17-210 and 50-17-215.
Section 50-17-230. All nonresidents of this State, before gigging for fish in the saltwaters in Game Zone 11, first shall procure a nonresident gigging license, the fee for which is twenty-five dollars and twenty-five cents. Any person violating the provisions of this section, upon conviction, must be punished by a fine of not less than fifty dollars and not more than two hundred dollars or imprisoned for not more than thirty days for the first offense.
Section 50-17-235. All residents of this State or freeholders of the counties within the zone, before gigging for fish in the saltwaters in Game Zone 11, must procure a resident gigging license, the fee for which is one dollar and ten cents.
Any person violating the provisions of this section, upon conviction, must be punished by a fine of not less than ten dollars nor more than two hundred dollars or imprisoned for not more than thirty days. The fine or imprisonment for each subsequent offense must be double that previously imposed against the violator.
Section 50-17-250. In the event that a nonresident's state charges South Carolina residents commercial license fees in excess of the amounts provided for like activities in this chapter, the nonresident must pay the same total license fees which his state charges South Carolina residents. The department may deny issuance of any license or permits for commercial fishing equipment or activities to residents of any coastal state which denies the same privileges to South Carolina residents. The department may limit the type of fishing equipment used, seasons, and areas where nonresidents may fish in accordance with comparable limitations placed upon South Carolina fishermen by the nonresident's state.
Section 50-17-260. The department upon issuing any license under this chapter shall furnish the licensee a copy of the regulations of the department relating to the Coastal Fisheries Laws and a copy of the Coastal Fisheries Laws.
Section 50-17-270. All revenues from taxes, licenses, rentals, or other sources derived from the fisheries or the operation and enforcement of the coastal fisheries laws must be transmitted to the department and the check must be made payable to the State Treasurer.
Revenues from all fines and forfeitures resulting from violations of the coastal fisheries laws must be transmitted to the county treasurer of the county where the revenues were collected who shall then transmit them, less any amount to be paid to the South Carolina Law Enforcement Training Council under the provisions of Section 23-23-70, to the department, and the check must be made payable to the State Treasurer. The checks must be forwarded to the State Treasurer who shall credit these revenues to the general fund of the State.
The remittances must be accompanied by a statement showing the name of all persons fined, the amount of each fine, the summons number, and the court in which each fine was collected.
The department, as provided by Section 50-5-110, may promulgate regulations concerning the establishment in the coastal counties of arrangements with the county treasurers or other persons for the issuance of licenses and for establishing the commissions to be paid to them and for the issue of receipts of collections and remittances of money for fines similar to and upon the terms now existing.
Section 50-17-280. The department may require any person licensed or permitted under this chapter to keep records and provide information and reports necessary for the administration and enforcement of the provisions of this chapter and the management of coastal fishery resources. The department has concurrent authority within the United States to collect and require the submission of pertinent data specified for submission to the Secretary of Commerce of the United States, or his designee, pursuant to the Fishery Conservation and Management Act of 1976, as amended, 16 U.S.C. 1801 et seq. The department may collect and require the submission of additional pertinent data for fisheries covered by a fisheries management plan or for which a management plan is being considered which the department considers reasonable and necessary for management purposes.
The information, data, and reports required pursuant to the provisions of this section must be provided on forms supplied to the licensee and by methods developed and supplied by the department. The records must be used only for the equitable and efficient administration and enforcement of applicable state law or departmental regulations or for determining fishery management policy. Any information which directly or indirectly discloses the identity of a licensee is exempted from the provisions of the South Carolina Freedom of Information Act. Such information is confidential and may not be disclosed except when required by order of a court of competent jurisdiction, but the department may release all or any part of information collected under authority of this section to the Secretary of Commerce of the United States, or his designee, for purposes of fisheries management. The department may compile statistical information in any nonconfidential aggregate or summary form which becomes a public record.
Every person engaged in the harvesting, buying, packing, wholesaling, or processing of saltwater fishery resources for which South Carolina is the original port of landing shall keep accurate records, books, or accounts of the information required by the department and shall make the records, books, or accounts open to the department for inspection.
The records, accounts, and reports which licensees are required to make, keep, exhibit, and provide may include data and information pertaining to the number, capacity, capability, and type of fishing vessels owned and operated, the type and quantity of fishing gear used, the catch of fish or other seafood by species in numbers, size, and weight, the areas in which the fishing occurred, the location of the catch, the length of time engaged in fishing, the number of hauls, drags, or sets, and the disposition of the fish and other seafood.
Any person licensed or permitted under this chapter who fails to keep accurate records or make the reports required by the department or violates any other provision of this article is guilty of a misdemeanor and, upon conviction, must be fined not more than two hundred dollars or imprisoned for not more than thirty days. Each month of delay in transmitting the reports constitutes a separate offense, and after three convictions, the department shall revoke the license or permit under which the reports are required and deny the issuance of another license or permit for a period of twelve months following the date of the third conviction. Any person who fails to keep or knowingly falsifies any records required under this section is guilty of a misdemeanor and, upon conviction, must be punished as provided in Section 16-9-10.
Section 50-17-290. The department shall suspend immediately for the period of time stated in this section and have its designated enforcement officer take possession of a license issued under Section 50-17-110 upon conviction of a violation of a section in Article 6 of this chapter. For a first offense the suspension must be ten days, for a second offense thirty days, and for a third offense the license must be revoked.
Article 3
Shellfish
Section 50-17-310. (A) The department may grant permits to any state resident for the exclusive use of portions of the intertidal or subtidal bottoms owned or controlled by the State for shellfish culture or mariculture for commercial purposes, not exceeding an aggregate of five hundred acres to any firm or individual. For any shellfish culture purpose other than for commercial use, the department may issue permits for as many as two acres, but no more, to any state resident at the annual fee provided in Section 50-17-335.
(B) Each permit issued under this section must be for five years and may be renewed at the option of the department for an additional five years at the yearly rate provided in Section 50-17-335.
Section 50-17-320. (A) If the State authorizes any activity or use requiring the permanent closure of shellfish grounds, the portion of a permitted area which falls within the closed area may be removed from the permit acreage agreement by the board. If a portion of the acreage is removed, the permit acreage agreement and annual fee must be adjusted on the annual renewal date as prescribed in Section 50-17-336.
(B) If a state or federal permit is issued over the objections of the department, or for a project of overriding public need, and if the permitted project causes the closure of any shellfish grounds or renders any bottoms unsuitable for the purpose of shellfish propagation, the department may require the permittee to mitigate or compensate, or both, for the loss of the public shellfish resource.
The compensation must be remitted to the department and placed in a special fund for shellfish management.
Compensation and mitigation under authority of this section may not be considered as factors in justifying the issuance of any such permit and this section may not be interpreted as authorizing the closure of any shellfish grounds or authorizing the rendering of any bottoms unsuitable for shellfish propagation.
If an unauthorized action results in a closure of shellfishing waters or renders them temporarily or permanently unsuitable for the purpose of shellfish propagation, the party responsible for the action may be required by the department to mitigate the loss of the resource and to compensate for damages which result from the loss of the shellfish resource.
(C) The terms of the mitigation or compensation authorized by subsection (B) and the amount of the award of damages must be determined in the first instance by the board. Its determination constitutes a final decision for the purpose of Section 1-23-380, and the affected party may seek judicial review pursuant to the decision.
Section 50-17-330. Any person desiring to acquire permit rights to any bottoms, as provided in Section 50-17-310, shall apply upon forms prescribed by the department. The nonrefundable sum of twenty-five dollars must accompany the application for each permit. The application must include the location and boundaries of the area desired to be used. If the area is subject to a permit, the department shall determine the acreage of shellfish bottoms and acreage capable of producing shellfish and have a permit map or plat made in accordance with the department specifications showing the perimeter boundaries of the area and the bottoms to be used for shellfish culture in the area. No other permit for shellfish culture on the bottoms delineated within a plat or permit map may be made during the term of the permit. The department has the authority to issue permits for mariculture, as defined in Section 50-17-367, within the perimeter boundaries of an existing permit if it is determined by the department that the mariculture operation will not interfere with the harvesting and cultivation of shellfish by the permittee. If any additional area suitable for cultivation of shellfish is found within the perimeter boundaries of the permit area, prior to the renewal of the permit or at the time of application for a new permit, the original permittee has first opportunity to acquire permit rights to the area capable of producing shellfish. The annual permit fee must be based upon the number of acres capable of producing shellfish within the boundaries of the entire permit area.
Section 50-17-331. Upon approval of the application and plat by the department, the applicant shall publish in a newspaper in which legal advertisements by the sheriff are published in the county wherein the territory applied for is located, a notice to all persons of the application for permit rights to the bottoms for the culture of shellfish, giving the name of the applicant and a sufficient description of the bottoms applied for to enable them to be located. The advertisement must be published once a week for three weeks prior to the granting of a shellfish culture permit.
Section 50-17-332. If an application is made by a person who was the holder of the lease or permit on the bottoms for the term immediately preceding the term for which application is made, preference must be given to that applicant if he has complied with all of the cultivation and planting requirements of this article.
Section 50-17-335. Each permittee shall pay for a permit under Section 50-17-310 an annual fee of five dollars an acre for the acreage of bottoms delineated on the permit map or plat lying below the mean high-water mark capable of producing shellfish.
Section 50-17-336. The annual fee for shellfish permits must be prorated from the first of the month following the issuance of the permit to January first next. Thereafter, all annual fees must be payable yearly in advance. On January first, the department shall render a bill to each permittee showing the amount owed. If the annual fee is not paid by February first, the department shall add a late payment penalty of ten percent of the total originally due and send a final notice advising the permittee that if he fails to pay the fee and the late payment fee before March first, the department shall declare the permit revoked for noncompliance.
Section 50-17-340. Each permittee shall plant one hundred twenty-five U.S. bushels of shell, cultch, or seed oysters annually for each acre of bottoms which is producing or capable of producing shellfish included in his permit issued under Section 50-17-310. All shell must be planted between May first and August thirty-first, except that raw shuck houses may replant green shell from current operations if the shell is replanted within three days after gathering. All shell and seed planting is under supervision of the department, which may require up to five percent of the total quota of shell or seed oysters of any permittee to be planted on state shellfish bottoms not under permit but within a twenty-mile radius of the permittee's place of business. Shell or seed oysters planted by a permittee on those bottoms must be credited to the permittee's annual quota in the amount equal to two times that of the number of bushels actually planted. The department may provide incentives to permittees for improved or innovative management and cultivation techniques in the form of additional planting credits or planting variances. If a permittee does not plant the required quota of shell or seed oysters on the permit area, the permit must be revoked by the department or the acreage of shellfish reduced based upon the percentage of the quota planted. In the event a permittee believes that a permit area or portion of it does not require planting during a given year for reasons of sound management, he may apply in writing to the department for a variance in his annual quota. The department may then conduct an inspection of the permit area or portion of it to determine whether the requested variance may be granted and notify the permittee of its decision. The decision of the department in those matters is legally binding. For the purpose of shell planting, a U.S. bushel is the standard measurement. One cubic yard of shell for planting is considered as twenty-one and seven-tenths U.S. bushels.
The provisions of this section do not apply to mariculture operations as defined in Section 50-17-367. The department is authorized to specify the terms and conditions on any permit issued for the purpose of shellfish mariculture.
Section 50-17-341. Persons granted permits for shellfish cultivation may gather shellfish for replanting from the bottoms of the State which may be designated by the department for that purpose. The permittee shall advise the department ten days before moving the seed.
Section 50-17-345. In addition to the requirements of this article, the department may specify other appropriate permit terms and conditions. One year after the date of the permit issued under Section 50-17-310 and each year thereafter during the life of the permit, if the permittee has not met the terms and conditions of the permit or the legal requirements of this article, the department after notice may revoke the permit. Prior to the reissuance of any permit in the area, consideration must be given to the designation of all or part of the area as state shellfish grounds for public use.
Section 50-17-346. No permit issued under Section 50-17-310 may be transferred without the approval of the department endorsed on it to be effective or to act as a release of the original permittee from the terms of the permit.
Section 50-17-350. Any person may gather for personal use not more than two U.S. bushels of oysters or one-half U.S. bushel of clams, or both, in any one day from state bottoms designated for public shellfishing. When bottoms are under permit by the State for shellfish cultivation as provided in Section 50-17-310, written permission for the gathering of shellfish must be obtained from the permit holder. This written permission must be on the person of the harvester when he is gathering shellfish from the area. Any person violating the provisions of this section, upon conviction, must be punished as provided in Section 50-17-100, and any shellfish in the possession of any person cited for a violation of this section may be seized and returned to the bottoms in the area harvested.
Section 50-17-355. Owners of riparian property may gather shellfish for personal use in the amounts specified in Section 50-17-350 from bottoms adjoining their property, if written permission for the purpose is obtained from the department.
Section 50-17-360. It is unlawful for any person to take or harvest shellfish for commercial purposes from state-owned bottoms without an individual harvesting permit issued by the department. A permit also is required for harvesting shellfish from any bottoms of the State by mechanically operated devices including dredges, hydraulic escalators, patent tongs, and mechanical oyster harvesters. The harvesting permits shall include provisions specifying the areas, times, types of equipment, species to be harvested, catch reporting requirements, and other conditions that the department determines necessary. The department may limit the number of harvesting permits in accordance with sound fishery management practices.
Any person issued a permit under this section shall harvest shellfish, whether for commercial or personal use, only from the areas of state bottoms specified on the permit.
The harvesting permits required by this section are in addition to the shellfish culture permits provided for under Section 50-17-310.
It is unlawful for any person to harvest shellfish between one-half hour after official sunset and one-half hour before official sunrise. In the case of bottoms under permits issued in accordance with Section 50-17-310, harvesting of shellfish during the period specified is lawful with the written permission of the department.
Any person violating the provisions of this section or failing to abide by the provisions of a permit issued under this section is guilty of a misdemeanor and, upon conviction, must be fined not less than one hundred dollars nor more than two hundred dollars or imprisoned for not more than thirty days. In addition, any person found guilty of a violation of any of the conditions or requirements of a permit issued under this section, or convicted of a violation of applicable conservation laws or regulations, shall have the permit issued to him suspended for the next thirty open season days following the date of conviction. Any boat, motor, and fishing equipment used by a person engaged in the taking of shellfish without a permit as required by this section, or during the period when his permit has been suspended, must be seized and, upon conviction, sold or redeemed as provided for in Section 50-17-650.
Section 50-17-365. It is unlawful for any person to remove, take, or harvest any shellfish, as defined in Section 50-5-10, from the coastal waters and bottoms of the State from May fifteenth to September fifteenth, inclusive. The board has the authority to open or close any area of state waters or bottoms for the removal, taking, or harvesting of shellfish for specified periods at any time during the year when biological and other conditions warrant the action. Nothing in this article may be construed to alter the authority of the Department of Health and Environmental Control to open and close shellfish grounds for public health reasons.
Nothing in this section prevents the removal of shellfish for the purpose of replanting under permit granted by the department. Clams and oysters may be imported during the closed season in this State from other states where the taking and possession of the shellfish is lawful. Each shipment or load of imported shellfish must be properly marked and identified to verify compliance with the provisions of this section. Any person violating the provisions of this section is guilty of a misdemeanor and, upon conviction, must be punished as provided in Section 50-17-100.
Section 50-17-366. It is unlawful to take, harvest, possess, sell, purchase, or import a hard clam of the genus Mercenaria of less than one inch in thickness, measured as the maximum depth of the intact clam from the exterior surface of one valve of the shell to the exterior surface of the opposite valve. A clam of less than the minimum legal size limit specified in this section must be returned alive immediately to the bottoms where found.
It is lawful for a clam hatchery or mariculture operation to have in possession clams of less than the minimum size limit specified in this section and to purchase, sell, or transplant sublegal sized clams upon obtaining a special permit from the department.
Section 50-17-367. The department may grant permission to persons engaged in mariculture operations to harvest, have in possession, and sell shellfish at any time during the year.
Section 50-17-370. The department must maintain areas where bona fide residents of this State may gather, for personal use, not more than two U.S. bushels of oysters in a day. The areas must be designated upon the approval of a majority of the county legislative delegation. The open areas must be located preferably at or near public landings. The department shall clearly mark and identify the open areas so that the public may readily recognize them as open areas. The department is responsible for the maintenance of the signs. Any nonresident gathering oysters in or on such public grounds or resident harvesting for commercial purposes or gathering in excess of the statutory limit set forth above, upon conviction, must be punished as provided in Section 50-17-100.
Section 50-17-375. The standard measure for the harvesting, selling, and marketing of shellfish in South Carolina is the U.S. bushel, equal to 2150.42 cubic inches.
Section 50-17-380. It is unlawful for any wholesale shellfish dealer licensed under Section 50-17-180 to purchase shellfish from any person other than a properly licensed and permitted commercial fisherman or another properly licensed and approved seafood dealer. He must maintain a record of all shellfish purchases which shall include the name and address of the seller, the area where harvested, the type of shellfish purchased, the date of purchase, and the commercial shellfisherman's license number. The record must be available for inspection upon proper identification by any lawfully constituted law enforcement officer, enforcement officer, or authorized management personnel of the department. Any person violating the provisions of this section is guilty of a misdemeanor and, upon conviction, must be fined not less than five hundred dollars nor more than one thousand dollars or imprisoned for not more than ninety days, or both.
Section 50-17-385. It is unlawful to commercially harvest shellfish in Game Zone 9 between Butler Inlet (Pawley's Inlet) and Midway Inlet in Georgetown County. Any person violating the provisions of this section is guilty of a misdemeanor and, upon conviction, must be fined not less than fifty dollars nor more than two hundred dollars or imprisoned not more than thirty days.
Section 50-17-390. The department has jurisdiction over all natural shell deposits, including those of oysters, clams, and other mollusks occurring upon or within state-owned bottoms. In addition, the department has jurisdiction over all shell deposits lying above the mean high-water mark if the deposits have been created by processes of natural accretion upon state-owned lands or bottoms. The Coastal division of the Department of Health and Environmental Control permit requirements for alteration of critical areas apply to the removal of all shell deposits within a critical area.
The department may grant permits to any person to remove shell from natural deposits for use in shellfish cultivation and mariculture. The permits must be issued for a term not to exceed three years and shall specify conditions the department may require, including areas from which shell may be harvested, dates and schedules of harvesting, types of equipment which may be used, and reporting requirements. Prior to granting permission to remove, the department shall analyze the potential for increased erosion in the area of the shell which is removed. Permission may be granted only when no significant erosion potential is foreseen. If permission is granted and the removal does cause significant erosion in the area, the person granted permission shall restore the area to its original condition or as close to its original condition as possible under the circumstances.
The department shall specify a fixed price for each unit of shell removed. Payments for shell removed must be made by the permit holder on or before the tenth day of each month for the preceding month.
All monies derived from the sale of shell under this section must be deposited in a special fund to be used for the management and improvement of shellfish bottoms utilized solely for the purpose of recreational harvest by the public and the bottoms may not be permitted for commercial operations for not less than ten years.
The department shall promulgate regulations necessary to carry out the provisions of this section.
Any person violating the provisions of this section is guilty of a misdemeanor and, upon conviction, must be punished as provided in Section 50-17-100. In addition, any permits issued for the removal of shell must be revoked by the department.
Article 4
Use of Nets, Seines, and Like Devices
Section 50-17-410. It is unlawful for any person in the Atlantic Ocean offshore of Game Zones 7 and 9 to use a purse seine closer than two hundred yards to any boat which is anchored or which is drifting when its occupants are engaged in fishing for sport. Any person violating the provisions of this section is guilty of a misdemeanor and, upon conviction, must be fined not exceeding two thousand five hundred dollars or imprisoned for a term not to exceed one year, or both.
Section 50-17-420. It is unlawful for any person to catch fish in the saltwaters of this State with a seine or gill net having a mesh size of less than three inches. For shrimp, a seine having a mesh size of not less than one-half inch nylon twine (square mesh) or nine-sixteenths inch cotton cord (square mesh), and a length of no more than forty feet, may be used. Any fixed or stationary net used for taking shrimp including a channel or set net must have a width at the mouth measured across the float or head line of no more than eighty feet. No fixed or stationary net used for taking shrimp may be set within three hundred feet of a marked navigation channel.
Section 50-17-421. It is unlawful to use set or channel nets in Game Zones 6 and 11 except in such areas at times and in such seasons as it is lawful to trawl for shrimp in those zones.
In Game Zones 7 and 9, it is unlawful to use set or channel nets except in those areas designated for that purpose by the department and during the seasons when it is lawful to trawl for shrimp in the areas specified in Section 50-17-615.
No set or channel net may be used in any of the waters of this State after November fifteenth of any year.
The department may extend the open season for set and channel nets by no more than thirty days in any year if the action is consistent with sound fisheries management.
It is unlawful to transport a set or channel net aboard a boat during the closed periods.
Section 50-17-422. During the open season for taking American shad in state waters of the Atlantic Ocean, all gill nets having a stretch mesh size between four and one-half inches and ten inches stretched mesh must be drift fished and may not be staked, anchored, or otherwise set in a fixed position. For the purpose of this section, anchored includes the use of concrete blocks or any other weight which is not a part of the natural construction of the gill net. No gill net of the mesh sizes specified in this paragraph used in the waters of the Atlantic Ocean during the open season for shad may be left unattended and, if the licensed owner or operator is not located in the immediate vicinity, the net must be confiscated.
A gill net of over one hundred yards in length used in the Atlantic Ocean from the shoreline seaward to the three mile territorial limit must be marked with buoys, red or international orange in color, not less than twenty inches in diameter which float above the water in a manner to be clearly visible at all times. One buoy must be attached to the float line of the net every one hundred yards and one of the buoys must be attached to each end of the net. At least one buoy attached to the net must have the name and license number of the owner clearly marked on it. Each net set in violation of this section constitutes a separate offense.
The penalties for violation of this section are the same as those prescribed in Section 50-17-470. The possession of freshly caught shad by any fisherman during the closed seasons is unlawful.
Section 50-17-425. Notwithstanding the provisions of Section 50-17-420, it is lawful to catch fish in the saltwaters of the Atlantic Ocean in Game Zone 7 with a haul seine (beach seine) having a mesh of no less than two inches stretched (one inch square mesh).
Section 50-17-430. It is unlawful to place or set any net, screen, seine, or similar device in any tidal creek, stream, channel, slough, or other waterway in a manner that will extend across more than one-half of the width of the waterway at any stage of the tide.
Section 50-17-440. The use of trammel, pound, fyke, stop nets, and purse seines in the waters of this State from the saltwater-freshwater dividing line seaward is prohibited. The use of gill nets, except gill nets one hundred feet in length or less with a minimum mesh size of three inches stretched used in the Atlantic Ocean from the beaches seaward and only in those areas of the bays and sounds designated by the department for such purposes, is prohibited, except as permitted by Article 8 of this chapter. The user of a gill net must be within one hundred yards or hailing distance of the net at all times it is in use.
Section 50-17-450. It is unlawful to place or set any stationary or fixed nets, including a gill net, fyke net, pound net, or seine within two hundred yards of any net or device previously set. It is unlawful to place or set any channel net within two hundred feet of any other channel net.
Section 50-17-455. It is unlawful to set or place any gill net, seine, or other commercial fishing device within five hundred yards of a fishing pier or man-made jetty equipped with a fishing walkway in the waters of the Atlantic Ocean, except that the activities referred to in this section are not barred at any place within the corporate limits of a municipality whose northern and southern boundaries are located between two fishing piers which are not more than one thousand, one hundred fifty yards distance from each other. The provisions of this section only apply to a fishing pier open to the public or man-made jetty equipped with a fishing walkway open to the public.
Section 50-17-460. Every gill net unattended must be marked with buoys or signs having the name, address, and license number of the owner marked clearly on it. The provisions of this section apply to shad, sturgeon, and herring nets used in accordance with the provisions of Article 8 of this chapter. Any net found not so marked is liable to confiscation by the department and any person violating this requirement may be punished as provided in Section 50-17-470.
Section 50-17-465. It is unlawful to use any seine or gill net in any lagoon, impoundment, or lake within the boundaries of a state park, except that small hand seines and cast nets for the taking of shrimp are allowed.
Section 50-17-470. Any person violating the provisions of this article is guilty of a misdemeanor and, upon conviction, must be fined not more than two hundred dollars or imprisoned for not more than thirty days. Any nets or fishing devices used in violation of this article or any permit requirements set forth by the department must be seized and, upon conviction, or in the case of nets unclaimed and unidentified after sixty days, may be disposed of by the department. Any catch found in nets or fishing devices used in violation of this article must be seized and sold and the proceeds of the sale must be held pending final disposition of the case.
In addition to the above, any person convicted of violating the provisions pertaining to set or channel nets under Section 50-17-130, 50-17-420, 50-17-421, or 50-17-450, or found in violation of departmental regulations shall have the set or channel net license issued to him revoked or suspended for the next thirty open season days. Any boat, motor, and equipment used to set, fish, or operate set, channel, or gill nets in violation of the provisions of Section 50-17-130, 50-17-421, or 50-17-422 or during the period for which the set or channel net license has been suspended or revoked must be seized and sold or redeemed as provided for under Section 50-17-650.
Article 5
Finfish and Crustaceans
Section 50-17-510. (A) It is unlawful to take, have in possession, land, or sell spiny lobster (Panilurus argus) in the State:
(1) taken or harvested April first to July twenty-fifth each year;
(2) of less than three inches carapace length or five and one-half inches tail length in the U. S. Fishery Conservation Zone in accordance with federal regulations promulgated under the Fishery Conservation and Management Act (P. L. 94-265).
(B) It is unlawful to take, catch, have in possession, land, or sell king (Scomberomorus cavalla) or spanish mackerel (Scomberomorus maculatus) during times and seasons closed to fishing for these species in the U. S. Fishery Conservation Zone under federal regulations promulgated in accordance with the Fishery Conservation and Management Act (P. L. 94-265). This section applies only to king or spanish mackerel taken by the fishing gear or equipment specified in the same regulations.
(C) It is unlawful to take, catch, have in possession, land, or sell fish of less than the minimum size limit, and in accordance with tolerance limits, established by federal regulations under authorization of the Fishery Conservation and Management Act (P. L. 94-265).
(D) (1) It is unlawful to take, catch, have in possession, land, or sell a spotted sea trout (Cynoscion nebulosus), known locally as winter trout, or flounder (Paralichthys) of less than twelve inches in total length or a red drum (Sciaenops ocellatus), known locally as channel or spot-tail bass, of less than fourteen inches in total length.
(2) It is unlawful for a person to take or have in possession more than one red drum exceeding thirty-two inches in total length in one day.
(3) Spotted sea trout or red drum of less than the minimum size limits or exceeding the catch limit in this subsection must be released immediately in the waters where caught.
(E) The species in this section must be landed with the head and tail fins intact.
(F) The regulations promulgated by the federal government regarding catch or possession limits on bluefish, cobia, Spanish mackerel, king mackerel, amberjack, all species of snapper, grouper, and porgy, and billfish, (Istiophoridae), under the Fishery Conservation and Management Act (P. L. 94-265) are declared to be the law of this State and apply in state waters. The department may adopt by regulation other fishery regulations promulgated under Public Law 94-265 which apply to federal waters adjacent to this state's waters. When adopted, these regulations apply in state waters, and a violation of these regulations is punishable as provided in this section.
(G) A person violating this section is guilty of a misdemeanor and, upon conviction, must be fined not more than two hundred dollars or imprisoned not more than thirty days.
Section 50-17-520. Spotted sea trout (winter trout), Cynoscion nebulosus, and red drum (channel bass), Sciaenops ocellatus, are game fish. It is unlawful to take or attempt to take either species in the waters of this State, except by cane pole, using hook and line, rod and reel, or by gigging. It is unlawful to gig for spotted sea trout or red drum between December first and March first. It is unlawful for a person to have in possession a red drum or spotted sea trout while fishing or transporting a gill net, seine, or other commercial fishing equipment.
A fish of either species caught in the devices must be returned to the water immediately. Bona fide mariculture operations may collect spotted sea trout and red drum with commercial fishing equipment or import either species for brood stock or culture purposes under special permit from the department.
A wholesale or retail seafood dealer or other business who imports red drum or spotted sea trout from another state or country where the taking and sale of the fish is lawful shall have in possession a bill of sale or other proof of origin for each lot or shipment of the fish received before the fish may be sold. Red drum or spotted sea trout grown in mariculture operations may be sold in this State if the fish are marked and identified properly.
It is unlawful for a person to take or have in possession more than fifteen spotted sea trout or five red drum in any one day. It is unlawful for a person to have in possession more than twenty flounder (Paralichthys species) taken by means of gig, spear, hook and line, or similar device in any one day. The possession limit does not apply to mariculture operations or to the sale of properly identified fish imported by seafood dealers as provided in this section. The species named in this section must be landed with the head and tail fins intact. The department may promulgate emergency regulations for size and catch limits on red drum, spotted sea trout, and flounder in the event of natural or man-induced phenomena which threaten the future status of the resource.
The penalties for convictions of violations of this section are as provided in Section 50-17-100 and each fish possessed, sold, offered for sale, purchased, or attempted to be purchased in violation of this section is a separate offense.
Section 50-17-530. It is unlawful to purchase, barter, trade, or sell species of billfish (Istiophoridae), including marlin, sailfish, and spearfish, in this State regardless of where taken or caught. A person violating this section is guilty of a misdemeanor and, upon conviction, must be fined two hundred dollars or imprisoned not more than thirty days.
Section 50-17-540. Tarpon (Megalops atlanticus) are gamefish. It is unlawful to take or attempt to take this species in the waters of this State, except by rod and reel, using hook and line. No person may have a tarpon in possession while transporting or using commercial fishing equipment and a tarpon taken by that type equipment must be returned to the water immediately. It is unlawful to buy, sell, or offer for sale a tarpon in this State. It is unlawful for a person to take or have in possession more than one tarpon in any one day.
The penalty for conviction of violation of this section is as provided in Section 50-17-100, and each fish in possession, sold, offered for sale, or purchased in violation of this section is a separate offense.
Article 6
Shrimp
Section 50-17-610. It is lawful to trawl for shrimp or prawn seaward from the boundary described in this section from May fifteenth to December thirty-first, both inclusive: Beginning at a point on the west bank of Wright River at its entrance to the sea extending northeastward across the mouth of the river to the southernmost tip of Turtle Island; thence following the shoreline of Turtle Island to a point on the northeasternmost tip of Turtle Island; thence turning and running east in a line tangent to the southernmost tip of Bloody Point; thence turning and running northeasterly along Daufuskie Island to a proposed marker (SC 1), latitude 32 degrees 07.1'N. and longitude 80 degrees 50.4'W.; thence running east across Caliboque Sound to a proposed marker (SC 2), latitude 32 degrees 07.1'N. and longitude 80 degrees 49.6'W.; thence northeasterly and continuing along the shoreline of Hilton Head Island around to its northernmost point and continuing therefrom to a marker designated on National Ocean Survey chart 11513 as G `5' and thence to marker R `4', thence running easterly through buoy No. R `2', thence continuing to red can No. `26'; thence to black day marker No. A-19 to the mouth of Station Creek; thence seaward around Bay Point Island to a proposed marker (SC 3) at latitude 32 degrees 16.9' N. and longitude 80 degrees 35.2' W.; thence running eastward across Trenchards Inlet to a proposed marker (SC 4) at latitude 32 degrees 16.9' N. and longitude 80 degrees 34.7' W.; thence turning seaward and following the shoreline, but excluding all creeks, to a point at the northernmost point of Fripp Island at Fripp Inlet; thence turning and running true north to the shoreline of Hunting Island; thence along the seaward edge of Hunting Island across the mouth of Johnson Creek to a point at the northernmost part upon the island; thence following the shoreline of Hunting Island to the Highway 21 Bridge crossing Harbor River; thence from the center of the swing span of the Highway 21 Bridge in a northeasterly direction to Marker A6; thence continuing to the flashing range light on the Combahee Bank; thence to a proposed marker (SC 5) on the west of Otter Island at latitude 32 degrees 29.1' N., and longitude 80 degrees 25.2' W.; thence seaward along the shoreline of Otter Island to a point at the mouth of Jefford and Fish Creek on the southern tip of Otter Island opposite Pine Island; thence turning and running in a southeasterly direction to the southernmost tip of Bay Point on Edisto Island; thence along the shoreline of Edisto Island, excluding all creeks, to a point on the western bank of the North Edisto River; thence due east across the North Edisto River to a point at the southwesternmost tip of Seabrook Island; thence seaward to the shoreline of Seabrook and Kiawah Islands, excluding all inlets, to Sandy Point; thence in a northerly direction to the southwesternmost tip of Folly Island; thence along Folly Island, across Lighthouse Inlet and along the seaward side of Morris Island to a point at Cummings Point where the jetty meets the beach; thence in an easterly direction following the submerged jetty to the point where the emergent portion of the south jetty begins; thence in a northeasterly direction across the Charleston Harbor entrance channel to a point where the emergent portion of the north jetty begins; thence in a northwesterly direction following the submerged portion of the north jetty to a point on Sullivans Island where the jetty intersects the beach; thence along Sullivans Island, the Isle of Palms, Dewees Island, Capers Island, and Bull Island; excluding all creeks, to a point at the northernmost tip of Bull Island; thence in a straight line northeasterly to the westernmost tip of Sandy Point; thence seaward along Raccoon Key to its easternmost tip; thence southeasterly to round the seaward side of Cape Romain and northward along the seaward shore of Cape Island to a point on the northernmost tip of such island; thence turning and running in a northwesterly direction to a point on the southeasternmost bank of Alligator Creek; thence turning and running in a northeasterly direction across Alligator Creek to a point on its northeastern bank; thence turning seaward and running along the shoreline of Murphy Island to a point on the western bank of the Santee River and across the mouth thereof to a point on the southwestern tip of Cedar Island; thence along Cedar Island across the mouth of the North Santee Bay to Santee Point; thence along the seaward shore of South Island to the northernmost point on the easternmost peninsula of the island; thence in a straight line to nun buoy `2' N.; thence turning and running in a northwesterly direction following the north jetty to the southernmost tip of North Island; thence northeasterly following the shoreline to the North Carolina-South Carolina boundaries, excluding all inlets.
Section 50-17-615. In addition to the area outlined in Section 50-17-610, from August fifteenth to December fifteenth, both inclusive, except in that area outlined in item (1) of this section wherein the period is from September first to November first, inclusive, it is lawful to trawl for shrimp or prawn:
(1) In that area of Calibogue Sound beginning at a proposed marker (SC 1) at latitude 32 degrees 7.1'N. and longitude 80 degrees 50.4'W.; thence in a generally northerly direction along the shoreline of Daufuskie Island to a point opposite Haig Point Lighthouse; thence in a northerly direction across the mouth of the Cooper River and along the western shore of Calibogue Sound across the mouth of Bryans Creek to a point at the mouth of an unnamed creek on Barataria Island, located at latitude 32 degrees 11.1'N., and longitude 80 degrees 48.6'W.; thence turning and running due east to a point on Hilton Head Island located at latitude 32 degrees 11.1'N., and longitude 80 degrees 47.0'W.; thence turning and running in a southwesterly direction along the western shoreline of Bram Point and the extension thereof to a flashing light No. 31 and thence in a southwesterly direction along the shoreline of Buck Island and the extension thereof, excluding Broad Creek to a proposed marker (SC 2) located on Braddock's Point, latitude 32 degrees 7.1'N. and longitude 80 degrees 49.6'W.
(2) In that area of Port Royal Sound beginning at flashing light No. 3; thence to day marker No. 5; thence continuing to flashing light No. 6; thence turning and running in a straight line in a northwesterly direction and around Foot Point to a point on Colleton Neck to a proposed marker (SC 6) located at latitude 32 degrees 19'N., longitude 80 degrees 47.7'W.; thence continuing in a northwesterly direction across the mouth of the Colleton River to the mouth of an unnamed creek on Spring Island at latitude 32 degrees 19.4'N., and longitude 80 degrees 48.2'W.; thence in a northerly direction following the shoreline of Spring Island to a point located at latitude 32 degrees 20.3'N., and longitude 80 degrees 48.1'W.; thence in a northeasterly direction across Chechessee River to the southernmost point of Rose Island; thence in an easterly direction to a point on Daws Island located at latitude 32 degrees 20.6'N., longitude 80 degrees 47.2'W., including the creek separating Rose Island and Daws Island; thence in a southeasterly direction along the shoreline of Daws Island, continuing around the southern tip of Daws Island, excluding all creeks; thence in a northwesterly direction along the shoreline of Broad River, excluding all creeks, to a point one-quarter (¼) mile south of the Highway 170 Bridge; thence across the Broad River in a northeasterly direction to the Port Royal Island shoreline at a point one-quarter (¼) mile south of the Highway 170 Bridge; thence in a southeasterly direction following the shoreline of Port Royal and Parris Islands, excluding all creeks, to the southernmost point of Parris Island; thence in a northerly direction up Beaufort River on the east side of Parris Island to a point at the south bank of the mouth of Ballast Creek; thence due east across Beaufort River to a point on St. Helena Island located at latitude 32 degrees 20.4'N., and longitude 80 degrees 38.9'W.; thence following the shoreline of St. Helena Island, excluding all creeks in a southerly direction to a point located at latitude 32 degrees 19'N., and longitude 80 degrees 38.7'W.; thence continuing westerly to a point one-quarter (¼) mile off the eastern shoreline of Beaufort River; thence turning and running in a southerly direction along a line one-quarter (¼) mile from the eastern shoreline of Beaufort River to a point one-quarter (¼) mile west of the eastern shore of Beaufort River at Lands' End; thence turning and running easterly to a point on Lands' End located at latitude 32 degrees 17.3'N., and longitude 80 degrees 38.7'W.; thence turning and running in a southerly direction along the eastern shore of Beaufort River, excluding all creeks, to a point on the southern bank of the mouth of Station Creek at day marker A-19.
(3) In that area of St. Helena Sound beginning at a point at the northernmost tip of Harbor Island, thence turning and running on the western shore of Harbor Island; thence to the Harbor Island Bridge across the Harbor River to a point on St. Helena Island; thence running in a generally northwesterly and westerly direction along the edge of St. Helena Island, excluding Coffin and Village Creeks, to a point of proposed marker (SC 9) located at latitude 32 degrees 27.1'N., and longitude 80 degrees 31.5'W.; thence running due north to a proposed marker (SC 10) on the south shore of Morgan Island at latitude 32 degrees 27.7'N., and longitude 80 degrees 31.5'W.; thence turning and running in a generally easterly and northwesterly direction along the seaward side of Morgan Island, excluding all creeks, to flashing marker No. 187; thence running northerly across the Sound to the mouth of a small unnamed creek located at latitude 32 degrees 30.8'N., and longitude 80 degrees 32.1'W.; thence easterly to the westernmost point of the Ashe Island marshes; thence following the shoreline of Ashe Island across the mouth of Rock Creek to proposed marker (SC 11) located on the end of Hutchinson Island at the mouth of Rock Creek at latitude 32 degrees 30.2'N., and longitude 80 degrees 25.9'W.; thence following the shoreline of Hutchinson Island in a southeasterly direction, excluding all creeks, to the southernmost point of the island; thence in a southeasterly direction across the mouth of the Ashepoo River through Buoy No. `2' to a point on Otter Island at latitude 32 degrees 29.4'N., and longitude 80 degrees 25.1'W.; thence following the shoreline of Otter Island in a southerly direction to marker (SC 5).
(4) In all that area within Bull Bay lying seaward, commencing at the mouths of all creeks and rivers entering Bull Bay;
(5) In all that area of North Santee Bay lying seaward of a line through the creek separating Cain Island and Crow Island and extending northeast to South Island to the mouth of Beach Creek; and
(6) In that area in Winyah Bay lying seaward of a projected line running through red nun buoy No. 16 and green flashing buoy No. 15 and extending outwardly therefrom in a straight line to North Island and Cat Island.
Section 50-17-616. It is unlawful to trawl for shrimp in any areas specified under Sections 50-17-610, 50-17-615, and 50-17-630 during the closed season.
Section 50-17-617. In describing the areas set forth in Sections 50-17-610, 50-17-615, and 50-17-618, all references to latitude, longitude, markers, buoys, and topography refer to NOAA, National Ocean Survey Nautical Charts Nos. 11513, 11521, 11531, and 11535, and future revisions of these charts.
Section 50-17-618. Notwithstanding other provisions in this title, the following waters of this State as described below are closed to trawling at all times:
(1) that area of Calibogue Sound delineated in Section 50-17-615(1) and bounded to the seaward by a line described in Section 50-17-610 as follows: beginning at Marker SC 1; latitude 32 degrees 07.1'N. and longitude 80 degrees 50.4'W.; running east across Calibogue Sound to Marker SC 2; and latitude 32 degrees 07.1'N. and longitude 80 degrees 49.6'W.;
(2) that area of Port Royal Sound delineated in Section 50-17-615(2) and bounded to the seaward by a line described in Section 50-17-610 as follows: beginning at the northernmost point of Hilton Head Island and continuing to a flashing light designated on National Ocean Survey Chart 11513 as FL R 4 sec `6' and to FL 2.5 sec `3' at the northern tip of Hilton Head Island, running easterly through bell buoy No. R `2'; continuing to red-lighted gong buoy; and to black day marker No. A-19 at the mouth of Station Creek;
(3) that area of St. Helena Sound delineated in Section 50-17-615(3) and bounded to the seaward by a line described in Section 50-17-610 as follows: beginning at the Highway 21 Bridge crossing Harbor River, from the center of the swing span of the Highway 21 Bridge in a northeasterly direction to Marker A6; continuing to the flashing range light on the Combahee Bank; to Marker SC 5 on the west of Otter Island at latitude 32 degrees 29.1'N. and longitude 80 degrees 25.2'W.; seaward along the shoreline of Otter Island to a point at the mouth of Jefford and Fish Creek on the southern tip of Otter Island opposite Pine Island; and turning and running in a southeasterly direction to the southernmost tip of Bay Point on Edisto Island;
(4) that area within Bull Bay lying seaward, beginning at the mouths of all creeks and rivers entering Bull Bay.
Section 50-17-620. It is unlawful to trawl within one-half mile of any fishing pier extending into the Atlantic Ocean.
Section 50-17-630. For purposes of regulating the trawling seasons in the areas set forth in Sections 50-17-610 and 50-17-615, there are established the following fishing zones:
(1) The northern zone, which shall extend from the North Carolina-South Carolina boundary at Little River, projecting such boundary line in a southeasterly (135 degrees true) direction to the territorial sea limit; thence in a southwesterly direction along the coast including all waters from the coastline to the territorial sea limit and all areas of Winyah Bay and North Santee Bay defined under Section 50-17-615 to a line beginning at a point on the southern end of Cedar Island at latitude 33 degrees 7.2'N. and longitude 79 degrees 16.3'W. and extending seaward in a southeasterly direction (135 degrees true) to the territorial sea limit.
(2) The central zone, which extends from the southernmost boundary line of the northern zone in a southwesterly direction along the coast, including all waters from the coastline to the territorial sea limit and all areas of Bull Bay defined under Section 50-17-615 to a line beginning at a point at the southern tip of Edisto Island at latitude 32 degrees 28.6'N., longitude 80 degrees 20.2'W. and extending seaward in a southeasterly direction (135 degrees true) to the territorial sea limit.
(3) The southern zone, which shall extend from the southernmost boundary line of the central zone in a southwesterly direction along the coast, including all waters from the coastline to the territorial sea limit and all areas of St. Helena Sound, Port Royal Sound, and Calibogue Sound defined under Section 50-17-615 to the South Carolina-Georgia boundary and the seaward extension of this boundary to the territorial sea limit as provided in Section 1-1-10.
The trawling zones defined in this section include only the legal trawling areas defined under Sections 50-17-610 and 50-17-615. The department may either prohibit trawling or any other commercial fishing activity in any of the fishing zones or specified areas therein or open the fishing zones or specified areas therein, in or out of season, if it believes such action should be taken in the best interest of the State.
This section may not be construed to modify the provisions of Section 50-17-620, 50-17-1010, or 50-17-1020.
Section 50-17-640. It is lawful to trawl for shrimp in the waters of this State only during the following period:
Opening day through
September fifteenth. . . . . 5:00 a.m. - 9:00 p.m.
September sixteenth
through closing date. . . . .6:00 a.m. - 7:00 p.m.
Section 50-17-645. It is unlawful to trawl for shrimp in any area except in the areas and for the purpose and at times as provided by law.
Section 50-17-650. The captain of any boat found trawling for shrimp at any time in violation of Section 50-17-616, 50-17-640, or 50-17-645 is guilty of a misdemeanor and, upon conviction, for a first and subsequent offense must be fined two hundred dollars or imprisoned for thirty days and his license must be suspended for one year from the date of conviction. Any license issued to him during the suspension is invalid. Any person whose captain's license has been suspended who is found operating any boat trawling for shrimp during the period for which his license has been suspended is guilty of a misdemeanor and, uponconviction, must be fined one thousand dollars or imprisoned for ninety days.
The license of any boat found operating in violation of the provisions of Section 50-17-616, 50-17-640, or 50-17-645 for a first offense must be suspended for the next thirty open season days after the conviction of a captain for violation of any of these sections; for a second offense, within one year from the date of conviction for violation of any of these sections for a first offense, the boat license must be suspended for the next one year; and for a third offense within one year from the date of conviction for violation of any of these sections for a first offense, the boat license must be suspended for two years from date of conviction. Any license issued for a boat during the license suspension is invalid.
The violation of Sections 50-17-640 and 50-17-645 at the same time or the violation of Sections 50-17-616 and 50-17-640 at the same time is considered as a first and second offense if no violations of these sections have occurred within one year prior to the date of the violations.
Any shrimp catch aboard any boat found violating the provisions of such sections must be seized and sold and the proceeds of the sale must be held by the department pending disposition of a case at court.
In addition to any other penalty, the use of a boat for shrimp trawling in any area which is never open to shrimp trawling or during the period for which its license has been suspended for a first offense is a misdemeanor, and the boat, including its rigging, equipment, and catch, must be seized and, upon conviction, the license of the boat and captain must be suspended for forty-five days. The catch must be sold and the proceeds of the sale must be held along with the other property pending final disposition of the case.
Upon conviction, the boat, equipment, and rigging held must be sold at public sale to the highest bidder after giving ten days' notice of the sale in a newspaper published in the county. A second offense occurring within one year of the first offense shall result in seizure of the boat, including its rigging, equipment, and catch, and, upon conviction, the suspension of the license of the boat and the captain for ninety days and a fine of two hundred dollars must be levied upon the captain. A third or subsequent offense occurring within one year of the immediate prior offense shall result in seizure of the boat, including its rigging, equipment, and catch, and, upon conviction, the suspension of the license of the boat and the captain for one full year and a fine of two hundred dollars must be levied upon the captain. In addition to any other penalty, a vessel unlawfully trawling in the area defined by Section 50-17-615 (the sounds and bays when closed) must be seized along with its equipment, rigging, and catch. The catch must be sold and the proceeds held along with the other property pending the final disposition of the case.
Upon conviction of the captain or operator for unlawfully trawling in a closed area the vessel, equipment, and rigging must be sold at public auction to the highest bidder after giving ten days' public notice in a newspaper of local circulation. In the event of seizure, if the boat, equipment, and rigging is worth more than twenty-four thousand dollars, the owner may redeem it before the public sale by paying five thousand dollars and, if the property is of equal or less value than twenty-four thousand dollars, the owner may redeem it before the public sale by paying two thousand dollars. The department shall determine the value of all seized property for the purposes of this section.
Section 50-17-660. (A) It is unlawful to catch or take shrimp by any means for commercial purposes outside the areas as specified in Sections 50-17-610, 50-17-615, 50-17-630, and 50-17-640 or outside the legal channel net zones as established by the department, other than for sale as live bait, or in or near any waters or bottoms which have been baited by placing, depositing, or scattering any material to attract or lure shrimp toward the bait or to cause shrimp to congregate in the area where the bait is placed. Furthermore, it is unlawful to take or to attempt to take shrimp by the use of a shrimp trap or shrimp pot.
(B) The department shall establish annually a sixty-day open season between September first and November fifteenth for taking shrimp over baited areas. The sixty days may but are not required to be consecutive. It is unlawful for anyone to take, or attempt to take, shrimp over bait during the closed season for taking shrimp over bait. The provisions of this subsection do not apply to anyone taking or attempting to take shrimp over bait by the use of a drop net from a pier, dock, or other structure permanently affixed to the high land.
(C) It is unlawful for a resident or nonresident of this State to take shrimp by cast net over bait during the open season unless he first obtains from the department a shrimp baiting permit and associated tags, except that a resident possessing the required permit and associated tags, while shrimping from a boat may be assisted in casting by other resident individuals in the boat with him and those individuals are not required to have a permit or associated tags. Upon receipt of application and fees, the department shall issue the permit along with ten marking device tags bearing the corresponding permit number. Each permittee while shrimping over bait shall carry on his person his baiting permit and upon demand shall show it to an enforcement officer.
(D) It is unlawful for any person to borrow, loan, or exchange a baiting permit or tags with another person. In addition to the penalties set forth in this section, he shall forfeit any right to any baiting permit and tags issued to him and is prohibited from procuring another baiting permit and tags for the season for which the baiting permit and tags so borrowed, exchanged, or loaned were issued.
(E) The fee for a resident shrimp baiting permit and associated tags is twenty-five dollars. The fee for the issuance of the nonresident shrimp baiting permit and associated tags is five hundred dollars. The department may issue duplicate baiting permits or tags upon affidavit from the permittee that he has lost his baiting permit or tags. The duplicate permit or tags must be labeled `Duplicate'. The fee for the issuance of a duplicate shrimp baiting permit is twenty-five dollars for residents and one hundred dollars for nonresidents. The fee for the issuance of each duplicate tag is one dollar for residents and four dollars for nonresidents.
All monies derived from the issuance of all permits and tags authorized in this section are retained by the department for the purposes of administration and enforcement of this section and Section 50-17-665.
(F) It is unlawful for any person to catch or take shrimp over a baited area unless:
(1) each bait deposit is marked by a pole not to exceed one inch in diameter which is driven into the ground and with the department-issued tag securely attached to it;
(2) each pole is plainly marked with white reflective tape;
(3) here is a ten-pole limit a boat a day, additional boats in tow may not be used to increase the number of authorized poles;
(4) there is a ten-pole limit for each person who is shrimping over a baited area if no boat is being used;
(5) if more than one pole is being used, the distance between the first and the last pole may not exceed one hundred yards;
(6) the minimum distance between each set of poles may not be less than twenty-five yards;
(7) no pole or set of poles may be left unattended, and if the permittee is not located in the immediate vicinity, the poles must be confiscated by the department;
(8) the permittee is allowed to shrimp over only those poles bearing his corresponding permit number.
It is unlawful during the closed season for taking shrimp over bait to have aboard any boat any poles or material that can be used to attract, lure, or cause shrimp to congregate.
It is unlawful to set poles within fifty yards of a dock or public landing or boat ramp.
(G) The provisions of subsection (F) do not apply to anyone taking or attempting to take shrimp by the use of a drop net over bait from a pier, dock, or other structure permanently affixed to the high land.
(H) Any person who violates the provisions of subsection (A) is guilty of a misdemeanor and, upon conviction, must be fined two hundred dollars or imprisoned for not more than thirty days, and the shrimp baiting permit, associated tags, and the fisherman's land and sell license must be suspended for two years. The boat, motor, trailer, rigging, coolers, nets, fishing devices, and catch must be seized and forfeited as provided in Section 50-17-650.
(I) Any person who violates the provisions of subsection (B) is guilty of a misdemeanor and, upon conviction, must be fined two hundred dollars or imprisoned for not more than thirty days and the boat, motor, trailer, rigging, coolers, fishing devices, and catch must be seized and forfeited as provided in Section 50-17-650. In addition, his privilege to catch shrimp over bait will be suspended for a period of two years from the date of conviction.
(J) Any person who violates the provisions of subsection (C) or (D) is guilty of a misdemeanor, and upon conviction for a first offense, must be fined two hundred dollars or imprisoned for not more than thirty days, and the catch must be seized and forfeited as provided in Section 50-17-650. Any person who violates these subsections for a second or subsequent offense is guilty of a misdemeanor and must be fined two hundred dollars or imprisoned for not more than thirty days and the boat, motor, trailer, rigging, coolers, fishing devices, and catch must be seized and forfeited as provided in Section 50-17-650.
(K) Any person who violates the provisions of subsection (F) is guilty of a misdemeanor and, upon conviction, must be fined two hundred dollars, and the catch must be seized and forfeited as provided in Section 50-17-650.
(L) Each quart of shrimp taken in violation of the provisions of this section may constitute a separate offense.
(M) No part of the fines provided in this section may be suspended.
Section 50-17-665. (A) When taking shrimp over bait, there is a catch limit of not more than forty-eight quarts of whole shrimp or twenty-nine quarts of headed shrimp, for each set of poles a day. When no bait is being used, the catch limit is forty-eight quarts of whole shrimp or twenty-nine quarts of headed shrimp for each boat a day or for each person when no boat is used. When a seine or seines are being used to take shrimp, one catch limit is allowed a day among the persons using the seines. As used in this section, a day means sunrise on one day to sunrise on the following day.
(B) It is unlawful for any person to have in his immediate control or possession more than forty-eight quarts of whole shrimp or twenty-nine quarts of headed shrimp while on the waters or the lands immediately adjacent to the waters. The possession limit is ninety-six quarts of whole shrimp or fifty-eight quarts of headed shrimp. This subsection does not apply to any commercial fisherman transporting his catch to a licensed seafood dealer, or to any licensed dealer distributing his product.
(C) Any person who violates the provisions of this section:
(1) by taking more than forty-eight quarts of whole shrimp or more than twenty-nine quarts of headed shrimp or for exceeding the lawful possession limit while not on the waters or the lands immediately adjacent is guilty of a misdemeanor and, upon conviction, must be fined two hundred dollars or imprisoned for not more than thirty days, and the entire catch must be seized and forfeited as provided in Section 50-17-650. If the shrimp involved in the violation were caught over bait, his privilege to catch shrimp over bait must be suspended for two years from the date of conviction;
(2) for a second or subsequent offense of possession of any number of quarts of shrimp over the lawful daily catch limit or possession limit is guilty of a misdemeanor and, upon conviction, must be fined two hundred dollars or imprisoned for not more than thirty days. In addition, the boat, motor, trailer, rigging, coolers, fishing devices, and the entire catch must be seized and forfeited as provided in Section 50-17-650. If the shrimp involved in the violation were caught over bait his privilege to catch shrimp over bait must be suspended for two years from the date of conviction. No part of the fines provided in this section may be suspended.
Section 50-17-670. Every boat licensed by the department to trawl for shrimp in this State, at the time of the issuance of the license, must be assigned by the department a number under which the boat must be registered and operated. The number so assigned to any such boat must be of distinctive numerals of such size and shape as may be furnished by the department and must be so displayed as to be clearly visible from either side of the vessel.
Section 50-17-675. Any boat operating during the closed season in areas permitted for shrimp trawling under Sections 50-17-610 and 50-17-615, or during times declared to be unlawful for shrimp trawling under Section 50-17-640, or operating in areas not permitted by law at any time, which does not have its nets, trawl, or other device, contrivance or appliance for scooping or otherwise taking shrimp, completely up and wholly within the boat is illegally trawling for shrimp under Section 50-17-616, 50-17-640, or 50-17-645. The trawl doors or otter boards may be hanging from the boom or outriggers if the net, trawl, or other device is on board the vessel. The provisions of this section do not affect any of the provisions of Section 50-17-740.
Section 50-17-681. It is unlawful for any fisherman to dump refuse from any type net at any time in the Atlantic Ocean from the southern tip of Pawley's Island in Georgetown County to the North Carolina state line within one mile from shore of any county in Game Zones 7 and 9.
Any person violating the provisions of this section is guilty of a misdemeanor and, upon conviction, must be punished by a fine of not more than five thousand dollars nor less than one thousand dollars or by imprisonment for not exceeding six months nor less than thirty days.
Section 50-17-685. A turtle excluder device must be used in trawl nets in state waters under the same conditions required by federal regulations.
The department must follow the federal enforcement guidelines when enforcing any state turtle excluder device regulations.
Article 7
Crabs
Section 50-17-710. It is unlawful for any person to catch, hold, have in his possession, or offer for sale any female crab bearing eggs visible thereon or any female crab from which the egg pouch or bunion has been removed. Nothing in this section may be construed to make it unlawful to catch such crabs unintentionally if they are forthwith, while still alive, returned to the water.
The provisions of this section do not apply to the importation of female sponge crabs from other coastal states where the taking and possession of such crabs is lawful if a permit for that purpose is obtained from the department and each shipment or load of such imported female sponge crabs has with it either an invoice from a licensed harvester in a state which legally allows their taking or a certificate from that state's appropriate agency verifying that the crabs were taken legally.
Section 50-17-716. (A) A float or buoy attached to a crab pot or crab trap set in the waters of this State must be made of solid, buoyant material as described by this section which does not sink upon being punctured or cracked. The floats must be constructed of plastic, PVC Spongex, plastic foam, or cork. No hollow buoys or floats including plastic, metal, or glass bottles or jugs may be used, except that manufactured buoys or floats specifically designed for use with traps or pots may be hollow if constructed of heavy duty plastic material and approved by the department.
A primary float attached to a crab pot must be at least ten inches in length if rectangular, cylindrical, or conical in shape and at least five inches in diameter or width. Round or spherical primary buoys or floats must be at least six inches in diameter.
(B) A person licensed to fish crab pots under Section 50-17-210 must be assigned an identification number by the department. The assigned identification number must be painted or branded on each crab pot float in numerals of a contrasting color at least two inches in height and must be clearly legible at all times. At the option of the licensee, the buoy identification number assigned to him may be affixed to his crab pot for identification purposes. It is unlawful for a person to mark crab pots, floats, or buoys with a number other than that assigned by the department under this section.
(C) A person violating the provisions of this section, upon conviction, must be punished as provided in Section 50-17-100. In addition, a crab trap found without the identification required by law must be seized and disposed of as determined by the department.
Section 50-17-720. It is unlawful for any person to catch, destroy, confine, hold, or have in his possession, whether for individual use or for market, any crab of the genus Callinectes sapidus (blue crab), or allied species, of a smaller size than five inches measured from tip of one lateral spine across the back of the shell to the tip of the opposite lateral spine. When a person purchases crabs away from his place of business he is not guilty of violating this section by transporting the crabs to his place of business nor until he has had a reasonable opportunity to examine the crabs. The provisions of this section, subject to the provisions of Section 50-17-730, do not apply to crabs in floats or tanks in the process of shedding into soft shell crabs, and any person having a valid permit or identification card, as provided in Section 50-17-730, may catch, have in possession, or offer for sale such crabs for the purpose of placing them in floats or tanks to shed into soft shell crabs.
Enforcement officers may inspect for violations of laws contained in this title pertaining to blue crabs only prior to the processing of the crabs.
Section 50-17-721. It is lawful for crab processors licensed under the laws of this State to import blue crabs of less than the minimum size limit specified by Section 50-17-720 from other states. A permit for this purpose must be obtained from the department. Each shipment or load of imported crabs must have with it either an invoice from a licensed harvester or dealer in that state or a certificate from an appropriate agency verifying that the crabs were taken in that state.
Section 50-17-725. (A) It is unlawful for any person to possess except for purposes of lawful removal of claws or transport any intact stone crab (Menippe mercenaria) or stone crab body, whether alive or dead. Only the larger of the two claws of any stone crab may be removed, with the live crab being returned immediately to the water. It is unlawful to remove either claw from any female stone crab bearing eggs visible thereon, and these crabs must be returned alive to the water immediately.
(B) It is unlawful to possess, sell, or offer for sale any stone crab claw which has a forearm (propodus) of less than two and three-quarters inches in length, measured by a straight line from the elbow to the tip of the lower immovable claw finger. The forearm (propodus) is defined as the largest section of the claw assembly, having both a movable and immovable finger and located farthest from the body of the crab.
(C) Any person violating the provisions of this section is guilty of a misdemeanor and, upon conviction, must be punished as provided in Section 50-17-100.
Section 50-17-730. As used in this section:
(1) `Peeler crab' means a blue crab (Callinectes sapidus), having a new soft shell fully developed under the hard shell and having a definite white, pink, or red line or rim on the outer edge of the back fin or flipper.
(2) `Soft shell crab' means a peeler crab which has recently shed its hard shell.
Notwithstanding the provisions of Section 50-17-720, any person engaged in the catching, taking, or transporting of peeler crabs or in shedding peeler crabs for the purpose of producing soft shell crabs is required to have a valid permit or identification card issued by the department.
Permits under this section must be issued only to bona fide dealers engaged in shedding peeler crabs and in possession of a valid license as provided in Section 50-17-180. The permits must be in addition to any other licenses and permits required by law. The fee for each permit is seventy-five dollars annually for the license period beginning July first. Identification cards may be issued to a permit holder under this section to be used by persons employed by him to catch and transport peeler crabs to his shedding operation.
The department has authority to inspect the business premises of any person engaged in shedding peeler crabs.
On each permit issued under this section the department has the authority to specify:
(a) the area from which peeler crabs may be caught or taken by gear other than crab pots;
(b) the types of gear or fishing equipment which may be used to take peeler crabs;
(c) catch reporting requirements;
(d) boat identification requirements;
(e) any other provisions the department considers necessary to carry out the provisions of this section.
Any person violating the provisions of this section or any of the permit conditions of the Marine Resources Division of the department is guilty of a misdemeanor and, upon conviction, must be fined two hundred dollars or imprisoned thirty days. Upon conviction for a second offense, any permits issued under this section must be suspended for thirty days. Any boat, with its equipment and rigging found engaged in the taking of peeler crabs after the permits have been suspended, must be confiscated and, upon conviction, must be sold as prescribed in Section 50-17-650.
Section 50-17-740. The department may open or close all or any portion of state waters lying seaward of the trawling boundaries described by Section 50-17-610 to crab trawling during December, January, February, and March of each year. The rest of the year crab trawling is prohibited. A boat, before engaging in trawling for crabs during the open season, must have a valid trawler's license as required by Section 50-17-150 and must have a crab trawling permit issued by the department. Permits issued under this section may include specifications as to lawful fishing areas, minimum size requirements, fishing times or periods, catch limitations, and catch reporting requirements. The department may limit the number of permits issued if determined to be in the best interests of sound fisheries management. It is unlawful to use, tow, drag, or have aboard a boat trawling for crabs a net having a mesh of less than four inches stretched mesh unless the net is stored or secured in a locked bin or container below deck.
The penalty for violation of the provisions of this section is the same as prescribed in Section 50-17-100. A permit issued under this section, upon conviction for violation of this section, may be suspended or revoked by the department. A boat or vessel found trawling during the period for which its permit has been suspended or revoked, or operating without a permit, must be seized and disposed of as provided in Section 50-17-650.
Section 50-17-745. In the normal, lawful process of trawling for shrimp commercially, the operators of a shrimp trawler may retain and market lawful size and species of crabs incidental to trawling for shrimp from the first day of June through November of each year.
Section 50-17-750. No trawling for crabs may be done with a net or a bag with a mesh of less than four inches, and chafing gear of any sort must be confined to not more than one-half the circumference of the tail bag.
Section 50-17-760. It is unlawful to set or use any trap or basket commonly termed a `crab pot' to catch crab for commercial purposes within the tributaries, between the headlands, and within Chechessee Creek in Beaufort County and between May first and October first within Pawley's Island Creek and Midway Creek on Pawley's Island in Georgetown County. Individuals may set two crab pots to catch crabs for personal consumption and not for sale.
Section 50-17-770. Every boat licensed by the department to trawl for crabs in this State, at the time of the issuance of such license must be assigned by the department a number under which the boat must be registered and operated. The number so assigned to the boat must be of distinctive numerals of a size and shape as may be furnished by the department and must be so displayed as to be clearly visible from either side of the vessel.
Section 50-17-780. The department may not issue any commercial licenses or permits for harvesting crabs to a resident of any state which prohibits the sale of commercial crab licenses to South Carolina residents, the provisions of Sections 50-17-210 and 50-17-150 notwithstanding.
Section 50-17-790. Any person violating the provisions of this article, except Section 50-17-730, upon conviction, must be punished as provided in Section 50-17-100.
Article 8
Shad, Herring, and Sturgeon
Section 50-17-805. Any person fishing for shad, herring, or sturgeon in either fresh or saltwaters of the State must obtain the applicable licenses required under Section 50-17-180, 50-17-210, or 50-17-240 but is not required to obtain the commercial freshwater fishing licenses provided under Article 6 of Chapter 13 of this title.
Section 50-17-810. It is unlawful to catch, buy, sell, or ship white shad or hickory shad between the twenty-fifth day of March or the Saturday before Easter Sunday, whichever comes later in each year, and the first day of February in the following year, except that:
(1) From a point forty river miles from the mouth of a stream in which shad may run on to the waters of its source the closed season for shad is from the thirtieth day of April each year until the first day of February the following year, the point forty river miles from the mouth of the Combahee River being designated as Rose Hill, from the mouth of the Waccamaw River in Horry County being designated as the junction of Big Bull Creek and the Waccamaw River, from the mouth of the Pee Dee River being designated as the bridge on Highway 701 across the river and on Yauhannah Lake being designated as the bridge on Highway 701 across Yauhannah Lake. However, on the Edisto River the closed season for the taking of shad is from April fifteenth each year until January fifteenth the following year from the U. S. Highway 17 bridge to the headwaters of the Edisto River and from April first each year until January fifteenth the following year from the U. S. Highway 17 bridge at Jacksonboro seaward.
(2) On Black River the closed season for fishing for shad with skimbow or pump nets for noncommercial purposes is from May first each year until February first the following year.
(3) From the first day of February to the first day of May each year, it is lawful to use bow, skimbow, or pump nets to catch shad for noncommercial purposes.
(4) It is lawful to catch white or hickory shad for noncommercial purposes by the use of a hook and line, including rod and reel, if the individual first has procured the regular state fishing license.
(5) On the Savannah River the open season for shad is from January fifteenth through April fifteenth except that shad fishing is prohibited in Back River and the North Channel of the Savannah River downstream from New Savannah Cut, as posted.
(6) No shad may be taken by gill net in the Santee River or its tributaries upstream from South Carolina Highway 41; except that beginning at 7:00 p.m. on Tuesday and Thursday until 6:00 a.m. the following day of one week and beginning at 7:00 p.m. on Wednesday and Friday until 6:00 a.m. the following day of the following week, alternately, shad may be taken by gill net in the Santee River and its tributaries upstream from South Carolina Highway 41 to South Carolina Highway 52. If the taking of shad between Highways 41 and 52 is determined to be hazardous to the striped bass fishery by the department, it may close the waters to shad fishing by emergency regulation.
Section 50-17-811. In Game Zone 7 the open season for catching of shad is from the first day of February to the fourth day of May.
Section 50-17-812. During the open season it is unlawful to catch shad or set a seine, a net, or other device for shad from:
(1) twelve noon on Saturday until twelve noon on Monday following, except with skimbow nets for noncommercial purposes on the Black River or Great Pee Dee River; or
(2) twelve midnight on Saturday until twelve noon on Tuesday following on the Edisto River from the U. S. Highway 17 bridge at Jacksonboro to the headwaters of the river, and twelve midnight on Friday until twelve noon Wednesday following on the Edisto River seaward of the U. S. Highway 17 bridge at Jacksonboro, except with skimbow nets for noncommercial purposes.
Section 50-17-813. It is lawful to set nets for the catching of shad in Game Zones 5 and 8 from Wednesday noon until one hour after official sundown on Sunday during the open season. Notwithstanding the provisions of Section 50-13-530 in Game Zones 5 and 8 seines, nets, and other plans or devices may be used on Saturdays and Sundays in the muddy streams, creeks, and inland waters of the zone.
Section 50-17-814. During the open season it is unlawful to use or set any seine or net or any other like device for catching shad in the Savannah River upstream of Interstate Highway 95 on Sundays, Mondays, and Tuesdays.
During the open season it is unlawful to use or set any seine or net or any other like device for catching shad in the Savannah River downstream of Interstate Highway 95 on Saturdays, Sundays, and Mondays.
Section 50-17-815. In Game Zones 7 and 9 it is unlawful to set nets to catch shad from Saturday noon until Monday noon during the open season.
Section 50-17-816. In Game Zone 10 it is unlawful to catch shad or set any seine or net or other device for the taking of shad from twelve noon on Sunday until twelve noon on the Tuesday following during the open season, except with skimbow nets for noncommercial purposes on the Black or Great Pee Dee Rivers within such game zones.
Section 50-17-817. It is lawful to use nets for catching shad in the Santee River from Monday noon until Saturday noon during the open season.
Section 50-17-820. It is lawful to fish for shad with a drift net measuring not more than one-half the width of the stream between the mouth of the Waccamaw River and Butler's Island in Georgetown County.
Section 50-17-830. The department may establish open and closed seasons, size limits, times, and areas for the taking of Atlantic sturgeon (Acipenser oxyrhynchus) in the waters of the State. Any person taking, catching, having in possession, buying, or selling any Atlantic sturgeon of less than or in excess of the size limits established, during the closed seasons or times, or in the closed areas established by the department is guilty of a violation of this section.
Any sturgeon taken during the closed season or times or in the closed areas established by the department must be released immediately in the waters where caught.
In addition to the penalties provided in Section 50-17-100, the catch, nets, and boats of any person accused of violating the provisions of this section must be seized and, upon conviction, sold as prescribed in Section 50-17-650.
Section 50-17-835. Notwithstanding the provisions of Section 50-17-830, it is unlawful for anyone to catch in the waters of this State, or to buy, sell, or ship short-nose sturgeon (Acipenser brevirostris).
Section 50-17-840. It is unlawful to fish with gill nets, anchor nets, stake row nets, or pound nets in an area of the Atlantic Ocean off Winyah Bay described as follows: within three nautical miles of the midpoint of a line extending from the point where the north jetty of Winyah Bay intersects the beach of North Island running in a southwesterly direction to the point where the south jetty of Winyah Bay intersects the beach of Sand Island; including all waters between the jetties. It is lawful to fish for Atlantic sturgeon in the area previously described with nets having a mesh size in compliance with Section 50-17-880 from February fifteenth through April fifteenth of any year. In addition to penalties provided in Section 50-17-100, the catch, nets, and boats of any person accused of violating the provisions of this section must be seized and, upon conviction, disposed of as provided in Section 50-17-650, except the provisions relating to redemption do not apply.
Section 50-17-850. The department shall issue `sets' for the catching of shad on the South Carolina side of the Savannah River. `Sets' means points on the banks of the river at which fishermen have the exclusive right to place nets. Persons wishing to obtain `sets' shall apply to the department on the first day of July of each year under the following terms and conditions:
(1) `sets' must be issued at the time commercial licenses are purchased and only to persons who acquire necessary licenses;
(2) not more than two `sets' may be issued to one household;
(3) any person holding a `set' in the previous year is entitled to reissuance of the same `set' between July first and July fifteenth of each year;
(4) after July fifteenth of each year `sets' must be issued in the order for which they are applied and all applicants shall appear in person to apply;
(5) the department may prescribe such other rules and conditions for the issuance of `sets' as necessary to provide proper control of `set' fishing.
Section 50-17-855. The department shall issue `sets' for the catching of shad in the Edisto River between the trestle of the Seaboard Coast Line Railroad (formerly Atlantic Coast Line) near Jacksonboro south to the trestle of the Seaboard Coast Line Railroad (formerly the Seaboard Air Line) under the following terms and conditions:
(1) `sets' must be issued at the time commercial licenses are purchased and only to persons who acquire necessary licenses;
(2) not more than two `sets' may be issued to one household;
(3) any person holding a `set' in the previous year is entitled to reissuance of the same `set' between July first and July fifteenth of each year;
(4) after July fifteenth of each year, `sets' must be issued in the order for which they are applied and all applicants must appear in person to apply for the `sets';
(5) the department shall designate certain areas for the use of drift nets between the above-mentioned trestles and no `sets' may be issued for those areas; and
(6) the department may prescribe other rules and conditions for the issuance of `sets' as necessary to provide proper control of `set' fishing.
Section 50-17-860. No nets for catching shad may be used with a mesh of less than five and one-half inches nor extending more than halfway across any stream nor within two hundred yards of any net previously set and no cable line or any other device used for the support of the nets may extend over halfway across any stream, nor is it lawful to set any nets for catching shad in lakes or coves tributary to any stream, whether navigable or not, except that a net of a size no larger than five and one-half inch stretch mesh but not less than four and one-half inch stretch mesh may be used in the Savannah River. No net or seine may be used in the muddy waters of any river within twenty-five yards of the mouth of any clearwater stream emptying into such river. In the Edisto River north of U. S. Highway 15 nets with a mesh of not less than four and one-half inches may be used.
Section 50-17-865. The provisions of Sections 50-17-810 and 50-17-860 do not apply to the use between February first and April twentieth of each year of bow nets or revolving dip traps operated on the Great Pee Dee River between Cheraw and the North Carolina line and between Cheraw and Yauhannah Bridge over the Great Pee Dee River and on the tributaries of such river where the tributaries enter the river between Cheraw and the bridge and on the Black River and its tributaries between Skinners Ferry Bridge on the Black River up the river and tributaries to their sources.
Section 50-17-867. (A) It is unlawful to fish for shad with a net measuring more than two hundred yards from the mouth of the Black or Waccamaw Rivers to the forty-mile limit. No such net may extend more than halfway across these streams.
(B) Anyone violating the provisions of this section is guilty of a misdemeanor and, upon conviction, for a first offense must be fined not less than twenty-five dollars nor more than one hundred dollars; for a second offense not less than fifty dollars nor more than one hundred dollars; and for a third offense not less than one hundred dollars.
Section 50-17-870. It is lawful to use gill nets having a mesh size no smaller than two and one-half inches and no greater than three inches, stretched mesh, for the taking of herring from February fifteenth through April fifteenth on Wednesday, Thursday, Friday, and Saturday only during any week of the open season in the following areas:
(1) on the Great Pee Dee, Old River around Bird Island, and Louders Lake in Darlington County and the Lynches River in Florence County;
(2) on the Sampit, Waccamaw, and Black Rivers in Game Zone 9;
(3) in Williamsburg County.
Section 50-17-880. No net with mesh less than ten inches may be used for catching sturgeon.
Section 50-17-886. It is unlawful for any person to leave his shad or sturgeon net on the banks of streams of this State more than three days after the closed season for the catching of shad or sturgeon.
Section 50-17-887. The finding of any net or seine with decomposed shad or sturgeon therein constitutes a sufficient ground for forfeiture of the net or seine and of the license of the owner.
Section 50-17-890. All persons engaged in buying, shipping, and selling shad or sturgeon shall keep records as prescribed by the department and shall make monthly reports as prescribed by that department.
Section 50-17-895. Any person, upon conviction of violation of the provisions of this article, must be punished as provided in Section 50-17-100.
Article 9
Terrapin
Section 50-17-910. It is unlawful for any person to take, purchase, or possess diamondback terrapin between the first day of April and the fifteenth day of July, inclusive, in each year, except such as are left over from the open season of which report must be rendered on oath on or before the tenth day of April showing the number and kind of diamondback terrapin so left over. Failure to render such a report is considered conclusive that none were left over, and any found in the persons' possession in excess of the ones reported are conclusively considered to have been received in violation of this section. The reports of leftover terrapin must show the location of the diamondback terrapin.
Section 50-17-920. The taking, detention, possession, purchase, or sale of diamondback terrapin less than five inches in length measured on the medial line of the bottom of the shell is unlawful.
Section 50-17-940. All diamondback terrapin taken in this State in violation of any of the provisions of the Coastal Fisheries Laws is contraband and, in addition to the penalty as provided in this chapter for the person violating such provision, the terrapin must be returned to the public waters.
Section 50-17-950. Any person convicted of violation of the provisions of this article must be punished as provided in Section 50-17-100.
Article 10
Restricted Areas
Section 50-17-1010. There are established as restricted areas the following areas or portions of the coastal and ocean beds of Beaufort, Charleston, and Colleton Counties:
(1) that portion or area lying northeast of the north jetty at the mouth of Charleston Harbor and the line of the north jetty extended one-half mile into the ocean and lying southwest of a line running southeast (true), starting at a point on the northeast shore of the inlet known as Dewees Inlet on the Dewees Island side of the inlet, which point is where the northeast shore of the inlet at mean high water intersects the ocean beach line of Dewees Island, and which line runs from the point southeast (true) one-half mile into the ocean, the area so designated being all that lies to the southeast of the ocean beaches or shores of Sullivan's Island and the Isle of Palms and southeast of the beach lines extended across all intervening inlets or breaks in the beach lines and between the two lines designated in this item and extending one-half mile into the ocean;
(2) that portion or area lying southwest of a line running due southeast (true), starting at a point on the southwest shore of the inlet known as Morris Island Lighthouse Inlet on the Folly Island side of the inlet, which point is where the southwest shore of the inlet at mean high water intersects the ocean beach line of Folly Island, and which line runs from the point southeast (true) one-half mile into the ocean, and lying northeast of a line running southeast (true), starting at a point where West Sixth Street intersects the ocean beach of Folly Island, and which line runs from the point southeast (true) one-half mile into the ocean, the area so designated being all that lies to the southeast of the ocean beach or shore of Folly Island between the two lines designated in this item and extending one-half mile into the ocean. The southwest end of the area from Stono Inlet to West Sixth Street is unrestricted to within a quarter mile of the beach at the low-water mark;
(3) that portion or area lying northeast of a line running due southeast (true), starting at a point on the northeast shore of the mouth of South Edisto River on the Edisto Island side of the inlet, at the place now known as Edisto Beach, formerly as McConkey's Beach, which point is where the northeast shore of the river at its mouth at mean high water intersects the ocean beach line of Edisto Beach, and which line runs from the point southeast (true) one-half mile into the ocean, and lying southwest of a line running southeast (true), starting at a point on the southwest shore of the inlet known as Frampton's Inlet on the Edingsville Beach side of the inlet, which point is where the southwest shore of the inlet at mean high water intersects the ocean beach line of Edingsville Beach on Edisto Island, and which line runs from the point southeast (true) one-half mile into the ocean, the area so designated being all that lies to the southeast of the ocean beaches or shores of Edisto Island known as Edisto Beach and Edingsville Beach and between the two lines designated in this item and extending one-half mile into the ocean;
(4) that area within one-quarter mile of the shores of the ocean beaches of Hunting Island and Fripp Island and within one-quarter mile of the beach of Hilton Head from Braddock Cove along the beach to Fish Haul Creek in Beaufort County. The areas described in this section are restricted only from May fifteenth through September fifteenth each year.
Section 50-17-1020. It is unlawful to use a trawl net within one-half mile from shore in a county in Game Zones 7 and 9 from the southern tip of Pawley's Island in Georgetown County to the North Carolina state line. However, trawl nets may be used in waters of the Atlantic Ocean adjacent to Georgetown County from September fifteenth through December thirty-first each year.
Section 50-17-1030. The captain of a boat found trawling in the areas defined in Section 50-17-1010, 50-17-1020, or 50-17-1040 during the specified restricted period is guilty of a misdemeanor and, upon conviction, for a first offense must be fined two hundred dollars or imprisoned not more than thirty days. Upon conviction for a second or subsequent offense, the captain must be fined two hundred dollars, and his license and the license of the boat must be suspended for thirty days.
Section 50-17-1040. Notwithstanding the provisions of subsection (3) of Section 50-17-1010, it is unlawful to trawl for shrimp within one-fourth of a mile of the mean low-water mark opposite Edisto Beach in Charleston and Colleton Counties between the points of Frampton Inlet and State Highway No. 174.
Section 50-17-1050. Any person dragging or towing behind any boat or vessel described in Section 50-17-1030 any net, trawl, or other device or appliance within any of the restricted areas, whether or not such net, trawl, or other device or appliance is at the time actually in contact with the ocean bottom or not and whether it is being used at the time for the catching of shrimp, fish, or other form of marine life or for the purpose of washing or cleaning the net or not, is guilty of a violation of this article and is subject to the penalties prescribed in Section 50-17-1030.
Section 50-17-1060. All areas of the coastal waters of Charleston County lying outside of the creeks, rivers, inlets, bays (Bull Bay excepted), harbors, and sounds or other inland waters, other than and excepting the areas specifically set apart in this article, are open to the use of trawling boats and vessels under regulations as provided by law.
Article 11
Point System For Violations of Coastal Fisheries Laws
Section 50-17-1110. For the purposes of this article:
(1) `Coastal fisheries privileges' means the privilege to engage in an activity involving fishing or taking, attempting to take, or possessing fish, shellfish, crustaceans, or products of them as defined in Section 50-17-15 and includes an activity for which a license or permit is required from the department and the privilege to hold a license or permit.
(2) `Conviction' includes the entry of a plea of guilty or nolo contendere and the forfeiture of bail or collateral deposited to secure a defendant's appearance in court.
(3) `Department' means the South Carolina Department of Natural Resources.
Section 50-17-1120. (A) There is established the following point system to be used by the department in suspending the privileges, licenses, and permits of persons convicted for violations of law and regulations which apply to coastal fisheries activities within this State:
(1) fishing or taking, attempting to take, buying, selling, or offering for sale fish, shellfish, or crustaceans without a proper license or permit: 18;
(2) fishing or taking or attempting to take fish, shellfish, or crustaceans in an unlawful manner, during unlawful hours or during the closed season for the activity, except shrimp trawling violations or violations in areas closed by the South Carolina Department of Health and Environmental Control: 10;
(3) violating commercial fishing license or permit conditions: 8;
(4) using unlawful or unauthorized fishing methods, gear, or equipment: 8;
(5) failing to keep records or make reports required by law or regulation: 6;
(6) violating size limit provisions set by law for fish, shellfish, crustaceans, or other seafood products: 6;
(7) possessing more than the legal limit of fish, shellfish, or crustaceans: 6;
(8) unlawfully buying, selling, or offering for sale fish, shellfish, crustaceans, or other seafood products by a properly licensed or permitted person: 10;
(9) harvesting shellfish on culture permit areas or state bottoms without proper permission or permit: 8;
(10) harvesting shellfish in an area closed to shellfishing by the Department of Health and Environmental Control: 18;
(11) stealing catch or fishing equipment or damaging or interfering with fishing equipment: 18;
(12) trawling or channel netting in an area closed to trawling or during closed season: 8;
(13) captain or crew of a boat failing to cooperate with an enforcement officer: 18;
(14) wilfully impeding or obstructing the lawful harvest of marine species: 18;
(15) trawling during unlawful hours or within restricted areas off beaches: 8;
(16) violating law pertaining to female sponge crabs: 8;
(17) fishing or taking, attempting to take, or possessing fish, shellfish, crustaceans, or other seafood products in an illegal manner not mentioned specifically in this section: 6.
(B) The points and penalties assessed under this section are in addition to other civil remedies and criminal penalties which may be assessed.
Section 50-17-1130. Each time a person is convicted of a violation enumerated in Section 50-17-1120 the number of points assigned to a violation must be charged against him. For each calendar year in which the person received no points, the department shall deduct one-half of the accumulated points if the total number of points is greater than three. If a person has three or less points at the end of a calendar year in which no points were received, the department shall reduce his point total to zero. The points and penalties assessed are in addition to other civil remedies and criminal penalties. Nothing in this article affects the action of the department in suspending, revoking, or canceling a license or permit when the action is mandatory under the law of this State. However, the suspension provisions of this article, when applied, are in lieu of other suspension provisions under the law of this State.
Section 50-17-1140. The department shall suspend for one year the coastal fisheries privileges and associated licenses and permits issued to a person who has accumulated eighteen or more points. The suspension begins the eleventh day after the person receives written notice by mail, return receipt requested, of the suspension and ends the same day the following year. The suspension provisions of this article do not apply to a boat or vessel license or permit, except as applied to a person operating the boat or vessel under Section 50-17-1120(A)(1).
Section 50-17-1150. (A) Upon determination by the department that a person has accumulated sufficient points to warrant the suspension of his privileges, the department shall notify him in writing, return receipt requested, that his privileges have been suspended, and he shall return the license or permit, other than a boat or vessel license or permit, in his name to the department within ten days.
(B) The person, within ten days after the notice of suspension, may request in writing a review and, upon receipt of the request, the department shall afford him a review. The department shall notify him of the date, time, and place of the review, and he may be represented by an attorney. The review must take place within twenty working days of receiving the request.
(C) If the person requests a review, the suspension must be held in abeyance until the day of the final disposition of his review by the department. If the suspension is upheld, the suspension begins the eleventh day after the review and ends the same day the following year. The review by the department is limited to a determination of the validity of the violations and points assessed. No probationary authority is given to the department.
Section 50-17-1160. (A) A person whose privileges have been suspended may appeal the decision of the department under Article 3, Chapter 23 of Title 1, the Administrative Procedures Act.
(B) If the person requests a review upon the record, the suspension is held in abeyance until the day of the final disposition of the appeal, and if the suspension is upheld, the suspension begins that day and ends the same day the following year.
Section 50-17-1170. After the expiration of the suspension period the person's record must be cleared of all points.
Section 50-17-1180. The board shall administer and enforce this article and may promulgate regulations for its implementation. The department shall print and distribute a brochure explaining the point system.
Section 50-17-1190. A person engaging in activities suspended by this article while the suspension is in effect is guilty of a misdemeanor and, upon conviction, for a first offense must be fined two hundred dollars or imprisoned thirty days and have his coastal fisheries privileges suspended for an additional three-year period for each offense. A person convicted of a second or subsequent offense under this section must be fined two thousand five hundred dollars or imprisoned one year."
Names revised
SECTION 1266. Section 50-18-10(5) of the 1976 Code is amended to read:
"(5) Department means the South Carolina Department of Natural Resources or its authorized agent.
Names revised; division and director changed to department
SECTION 1267. Chapter 19, Title 50 of the 1976 Code is amended to read:
"CHAPTER 19
Special Hunting and Fishing Provisions for Certain
Counties and Areas
Article 1
Cherokee County; Fish and Game Club
Section 50-19-10. There is created hereby a fish and game club for Cherokee County, to be known as Cherokee Fish and Game Club. The purpose of said Club shall be to conserve and propagate game fish and game birds in said county, and to cooperate and assist in the enforcement of all local and State laws to this end. The president of the Club, subject to the rules and bylaws of the Club, shall procure from government and other available sources necessary stock for propagating game fish in the streams of the county and for propagating wild game in the county and shall further such measures as are necessary for acquiring preserves and for otherwise propagating and protecting such fish and game from unlawful destruction. The secretary of the Club shall perform such duties as are prescribed by the bylaws and the constitution of the Club and shall keep an accurate and permanent record of all the meetings of the Club. The Club shall be governed in all respects other than herein set out by the bylaws and constitution of the Club.
Article 3
Darlington County; Advisory Fish and Game Commission
Section 50-19-110. There is hereby created the Darlington County Advisory Fish and Game Commission to be composed of seven members who shall be appointed by a majority of the Darlington County legislative delegation. The members of the Commission shall be qualified electors of Darlington County, and not more than one commissioner shall be appointed from any one township. The terms of the commissioners shall be for three years and until their successors are elected and qualify, except that of the members first appointed two were appointed to serve for a term of one year, two for a term of two years and three for a term of three years. Any vacancy shall be filled in the manner of the original appointment.
Section 50-19-120. The Commission shall organize by electing one of its members chairman and one of its members secretary, and the commissioners shall meet at such time and place as may be designated by the chairman.
Section 50-19-130. The Commission shall make studies and recommendations to the department pertaining to the supervision of fish and game in Darlington County, except Prestwood Lake. It shall cooperate with the department in supervising the opening and closing of all fish and game seasons in the county and regulations in connection therewith and control thereof, insofar as consistent with the statutory laws of the State. The Commission shall advise and confer with the county legislative delegation and shall recommend such changes as appear to be necessary in the fish and game laws.
Article 5
Darlington County;
Prestwood Lake Wildlife Refuge Board
Section 50-19-210. There is hereby created a board to be known as the Prestwood Lake Wildlife Refuge Board. The Board shall be composed of seven members who shall be appointed by the Governor upon the recommendation of a majority of the Darlington County legislative delegation. Three members having been appointed for an initial term of two years and four having been appointed for an initial term of four years, thereafter their successors have been and shall be appointed to serve for regular terms of four years each.
Section 50-19-220. After their appointments, the members of the Board shall meet immediately and organize and from among themselves shall select one of their members as chairman and one as secretary. The Board shall meet at the call of the chairman or upon the request of a majority of its members. The members shall serve without compensation.
Section 50-19-230. The Board shall have the following powers and duties:
(1) To govern and manage the Prestwood Lake Wildlife Refuge and to do all things incidental thereto;
(2) To accept and receive donations, gifts or grants on behalf of the refuge and to use such funds as the Board deems best for the propagation and protection of wildlife in the area;
(3) To take charge of the refuge and to make recommendations relative to the propagation and protection of wildlife therein, particularly including the posting of signs within this area;
(4) To report and prosecute all persons trespassing in the area or breaking the game laws relative thereto; and
(5) To plant and distribute food for wildlife in the area and to encourage and assist other individuals to do likewise in or on property adjacent thereto.
Section 50-19-240. In addition to the powers and duties set forth in Section 50-19-230, the Board may adopt and promulgate such rules and regulations relating to the use of baskets, nets, trotlines and other means of taking nongame fish as it may deem advisable. No such rule or regulation shall take effect until approved by the department, and notice of such rule or regulation has been published at least once in a newspaper of general circulation in Darlington County. When any such rule or regulation becomes effective it shall have the force and effect of law. Any person convicted of a violation of a rule or regulation adopted pursuant to this section shall be guilty of a misdemeanor and shall be punished by a fine of not more than one hundred dollars or by imprisonment for not more than thirty days.
Article 7
Georgetown County
Section 50-19-310. It shall be unlawful for any person to fish at any time on the causeway crossing Belle Isle Lake on the Old South Island Road in Georgetown County. Any person found guilty of violating the provisions of this section shall be fined not to exceed the sum of twenty-five dollars or be confined for a period not to exceed thirty days, in the discretion of the court, for each separate offense.
Section 50-19-320. The forty-mile limit of Black River in Georgetown County is hereby declared to be at the mouth of Lane's Creek, and the forty-mile limit on Big Pee Dee River in Georgetown County is hereby declared to be at the old ferry landing near Yauhannah Lake.
Section 50-19-330. It shall be unlawful in Georgetown County for any person to gig for fish in salt waters from the northern tip of North Island to the northern tip of Magnolia Beach during the daylight hours. Any person violating the provisions of this section shall, upon conviction, be punished by a fine of not more than one hundred dollars or be imprisoned for not more than thirty days.
Article 9
Greenville County; Lanier Lake
Section 50-19-410. The department may enter into an agreement with the owners of Lake Lanier, located in Greenville County, whereby the department may take over the management of the lake and lake property for fisheries and hunting purposes and shall take the necessary steps toward restocking the lake with fish, designating open and closed seasons for fishing and hunting thereon, making rules and regulations by which permits may be issued to persons for fishing and hunting thereon and in all other ways exercising complete control of the waters of the lake in such a manner that will most successfully restock, propagate and protect the fish and game in the lake for the benefit of the public in general.
Article 11
Greenwood County; Fishing Near Greenwood Power Plant
Section 50-19-510. Fishing shall be permitted along, in and on the spillway or race south of the floodgates of the Greenwood hydroelectric plant on or near waters of the Saluda River as provided in this article.
Section 50-19-520. The Greenwood County Electric Power Commission shall erect on each side of such race or spillway a fence to run to the edge of the water as follows: Along the Newberry side or steam plant side such fence shall be erected at a point two hundred and twenty-five feet from the south side of the floodgate of the hydroelectric power plant, which shall be at or near the end of the riprap or cement abutment on such side and on the Greenwood side of such spillway or race a fence shall be erected at a point two hundred and twenty-six feet south of the floodgate of such hydroelectric plant, which shall be at or near the end of the riprap or cement abutment on such side. The fence or line to be erected on either side of such race or spillway shall be of such height and so constructed as not to materially interfere with fishing as herein permitted.
Section 50-19-530. No fishing shall be allowed beyond such fence toward the floodgate on the south side of the plant, nor shall any person be allowed beyond this point, either on the land or on the water, by boat or otherwise, except that any person fishing may cast or fish above the fence toward the floodgates of the hydroelectric plant if he does not go beyond the fence line to be established in accordance herewith.
Section 50-19-540. No fishing shall be allowed nor shall any person go within three hundred feet of the northern edge of the floodgates on the northern and lake side of the hydroelectric power plant. The Greenwood County Electric Power Commission shall erect a fence or signs to identify such line so that members of the public shall be fully informed as to its location. Fishers may cast or fish beyond such line provided they do not go beyond it.
Section 50-19-550. The Greenwood County Electric Power Commission shall establish and maintain proper and suitable `no trespass' signs so that members of the public shall be sufficiently warned and notified as to the lines established.
Section 50-19-560. Fishing permitted along such area, as herein provided, shall only be done by hook or line, which shall include poles, rods and reels, and natural or artificial bait.
Section 50-19-570. Any person fishing or going along the area as herein provided shall do so at his own risk, and no liability shall be imposed upon the counties or the authority involved in any manner whatever. Signs shall be erected at conspicuous places declaring that persons fishing and going along the area as herein authorized shall do so at their own risk.
Section 50-19-580. The provisions of this article shall not affect in any manner the authority of the Greenwood County Electric Power Commission and the acts of the employees, agents, licensees and servants of the Commission in carrying on their duties and responsibilities in connection with the operation of such plant.
Section 50-19-590. Any person violating any provision of this article is guilty of a misdemeanor and shall be punished as follows:
(1) For a first offense by a fine of not less than twenty-five dollars nor more than one hundred dollars or by imprisonment of not less than ten days or more than thirty days;
(2) For a second offense by a fine of not less than fifty dollars nor more than one hundred dollars or by imprisonment of not less than fifteen days or more than thirty days; and
(3) For a third offense by a fine of not less than two hundred dollars or by imprisonment of not less than thirty days, in the discretion of the court having jurisdiction.
Article 13
Horry County
Section 50-19-710. The Horry County Fish and Game Commission shall be composed of seven members who shall reside, respectively, in the following territories: One from the county at large; one from Conway township; one from Bucks and Dog Bluff townships; one from Gallivant's Ferry and Bayboro townships; one from Floyds and Green Sea townships; one from Simpson Creek and Little River townships; and one from Dogwood Neck and Socastee townships. The members shall be appointed by the Senator and a majority of the representatives in the Horry County legislative delegation.
Section 50-19-720. One of the commissioners having been appointed for a term of one year, three for a term of two years and three for a term of three years, their successors have been and shall be appointed for terms of three years. They shall organize by electing one of their members chairman and one of their members secretary. In case of a vacancy, the vacancy shall be filled in the manner above provided.
Section 50-19-730. The Commission shall meet at least once each quarter at such time and place as may be designated by the chairman and also at such special meetings as emergencies may necessitate.
Section 50-19-740. The members of the Commission shall each receive compensation payable quarterly by the treasurer of Horry County out of funds provided for such purpose in the county appropriation act.
Section 50-19-750. The commission shall recommend to the department the salaries to be paid to the enforcement officers from funds apportioned or allotted to Horry County for enforcement of the game and fish laws.
Section 50-19-760. The commission shall report to the department the actions of any enforcement officer in Horry County and recommend suspension or discharge of any enforcement officer.
Section 50-19-770. The commission shall cooperate with the department in supervision over the opening and closing of all fish and game seasons in Horry County, regulations in connection therewith and control thereof, in so far as is consistent with the statutory laws of the State.
Section 50-19-780. It shall be unlawful for anyone to bathe, fish or otherwise trespass in the waters under or within fifty feet on either side or beyond the end of any ocean fishing pier on the Atlantic coast in Horry County. Anyone violating any provision of this section shall be guilty of a misdemeanor and, upon conviction, shall be fined not less than ten dollars nor more than fifty dollars or be imprisoned for not less than two days nor more than ten days.
Article 16
Lancaster County; Hunting Deer With Dogs
Section 50-19-960. Notwithstanding any other provision of law, it shall be lawful to hunt deer with dogs from September fifteenth through January first in the following described area of Lancaster County:
Beginning at a point where the old Kershaw-Lancaster County line crosses State Road 522, thence easterly along such line to Beaver Creek, thence southerly along Beaver Creek to the present Kershaw-Lancaster County line, thence westerly along such line to Mud Hole Road, thence northerly along Mud Hole Road to Road 522 in Stoneboro, thence northerly along Road 522 to the point of beginning.
Article 17
Lee County; Duties of Legislative Delegation
Section 50-19-1010. The Lee County legislative delegation shall recommend such change or changes as they deem necessary for the proper protection of the fish and game in Lee County and may recommend closed seasons in case of emergencies.
Section 50-19-1020. The county legislative delegation shall cooperate with the department and shall report semiannually to the department the actions of all enforcement officers in Lee County.
Article 19
Marion County; Fish and Game Commission
Section 50-19-1110. There shall be a board known as the Marion County Fish and Game Commission which shall be composed of seven members. The members of the Commission shall be qualified electors not less than twenty-five years of age. Not more than one commissioner shall be appointed from any one township. The members shall be appointed by a majority of the Marion County legislative delegation.
Section 50-19-1120. Of the seven commissioners first appointed two having served for a term of one year, two for a term of two years and three for a term of three years, their successors have been and shall hereafter be appointed for terms of three years. In case of a vacancy, such vacancy shall be filled in the manner above provided.
Section 50-19-1130. The Commission shall organize by electing one of its members chairman and one of its members secretary. The commissioners shall meet at least once each quarter, at such time and place as may be designated by the chairman, and at such other meeting or meetings as emergencies may necessitate.
Section 50-19-1140. The Commission shall have general supervision over fish and game in Marion County. It shall cooperate with the department in supervision over the opening and closing of all fish and game seasons in Marion County and regulations in connection therewith and control thereof, in so far as is consistent with the statutory laws of the State.
Section 50-19-1150. The Commission shall advise and confer with the county legislative delegation and shall recommend such change or changes as appear to it to be necessary in the fish and game laws in effect in Marion County.
Section 50-19-1160. The Commission shall nominate enforcement officers for the county by forwarding the name and address of the persons nominated to the county legislative delegation. If a majority of the delegation shall be agreeable to such nomination or nominations, they shall forward the name of the prospective enforcement officer or officers to the director for approval. The enforcement officer or officers so appointed shall devote their entire time to the enforcement of the laws relating to wildlife, marine resources, and natural resources.
Section 50-19-1170. The Commission shall recommend to the department the salaries to be paid to such enforcement officers from funds apportioned or allotted to Marion County for enforcement of the game and fish laws.
Section 50-19-1180. The Commission shall report to the department the actions of any enforcement officer in Marion County and may recommend suspension or discharge of any enforcement officer.
Article 21
Marlboro County; Fish and Wildlife Projects
Section 50-19-1310. The department, in addition to the authority and powers granted it pursuant to Section 50-13-1920, may acquire land in Marlboro County for the purpose of creating artificial public fishing lakes, establishing fish hatcheries and fish nurseries, establishing wildlife management areas in conjunction with the Federal Government, or otherwise, and engaging in any other approved wildlife restoration projects.
Section 50-19-1320. In order to carry out the purposes of this article the power of condemnation is conferred upon the board. The power must be exercised to condemn only property necessary, useful, or convenient for the purposes of this article. All land acquired must be in fee simple and just compensation must be paid for it.
Section 50-19-1330. To carry out the provisions of this article the department may expend any funds under its control and available for such purposes.
Article 25
York County; Hunting Crows
Section 50-19-1510. License unnecessary for hunting crows in York County. It shall be lawful for residents of York County to hunt and kill crows in said county without a hunting license.
Article 27
York County; Catawba Lake Fishing Area; Fishing
Near India Hook Dam
Section 50-19-1610. That body of backwater lying above the India Hook Dam on the Catawba River in York County, and extending to the North Carolina state line, together with the waters of the streams tributary thereto from the points at which such tributaries empty into the lake to the points where the flow of such streams is normal and the water level not raised by the impounding of the backwaters of the lake, are hereby set apart as the Catawba Lake Fishing Area, such tributary limits to be clearly marked with signs by the department.
Section 50-19-1620. It is unlawful for any person to fish from a raft, boat or any other floating device in the following described areas on the Catawba River in York County: An area lying downstream from the Catawba dam and powerhouse of the Duke Power Company in York County, such area extending for a distance of approximately three hundred and seventy-five feet downstream from the south or downstream wall of the powerhouse and extending from the east bank of the river to the southwestern corner of the dam; also an area on the upstream side of the powerhouse extending for a distance of approximately one hundred feet from the northern or upstream wall of the powerhouse and extending from the eastern bank of the pond to the western wall of the powerhouse.
However, this section shall not be construed to prevent fishing from any point on the rock pile situate below the India Hook Dam or on the banks adjacent to the areas above described. The term `banks adjacent to the areas above described' shall not include any part or extension of the dam.
Any person violating the provisions of this section is guilty of a misdemeanor and, upon conviction, shall be fined not less than ten dollars nor more than fifty dollars or imprisoned for not more than thirty days, in the discretion of the trial court.
Section 50-19-1630. Whatever funds are necessary for the carrying out of the purpose and intent of this article are hereby appropriated for the payment of expenses, including salaries. Whatever the amount, the county auditor and the county treasurer shall fix a levy and collect the taxes upon all of the taxable property in York County to meet the needs of the funds herein appropriated and such taxes shall be collected as any other taxes are collected.
Article 29
Catawba-Wateree Fish and Game Commission; Fishing
in Catawba-Wateree Rivers, Lakes and Reservoir
Section 50-19-1710. There is hereby created the Catawba-Wateree Fish and Game Commission which shall be composed of four members, one of whom shall be appointed by each of the respective county legislative delegations of Chester, Fairfield, Kershaw and Lancaster Counties. The members shall serve at the will of the respective county legislative delegations.
Section 50-19-1720. The Commission shall meet once each month if necessary, and each member in attendance shall be paid the sum of ten dollars per day, plus mileage at the rate of five cents per mile. The Commission shall keep records of all business transacted at such meetings and designate the time and place of meetings.
Section 50-19-1730. The Commission shall cooperate with the department in the enforcement of all fishing laws and regulations within such counties and shall work under the direction of the department in the enforcement of all rules and regulations provided in this article. The Commission shall cooperate with the department in the control of all fishing in the waters, including all backwaters, of the Catawba and Wateree Rivers within said counties, except waters lying more than one hundred yards south of the Wateree Dam in Kershaw County.
Section 50-19-1810. It shall not be unlawful for anyone to fish from the banks of the watercourse below the Duke Power Company Wateree Dam in Kershaw County within two hundred feet from the dam, but it shall be unlawful to fish from any structure or abutment erected by Duke Power Company, and Duke Power Company shall not be liable for any injury sustained by any fisherman fishing within the two hundred foot prohibited zone. Anyone violating the provisions of this section shall be fined not less than twenty-five dollars nor more than one hundred dollars or imprisoned for not more than thirty days, or both.
Section 50-19-1820. It shall not be unlawful for anyone to fish from the banks of the watercourse above the Duke Power Company Wateree Dam in Kershaw County within one hundred feet from the dam, but it shall be unlawful to fish from any structure or abutment erected by Duke Power Company. Nothing in this section or Section 50-25-320 shall be construed to prohibit fishing in waters within one hundred feet of the dam from a boat which is further than one hundred feet from the dam.
Section 50-19-1830. (1) It shall be unlawful for any person to hunt or molest in any manner any species of waterfowl or to molest any nests of any waterfowl on the waters of Wateree Lake between the Wateree Dam and Dutchman's Creek in Kershaw County.
(2) Any person violating the provisions of this section is guilty of a misdemeanor and, upon conviction, shall be punished by a fine of not more than one hundred dollars or by imprisonment for not more than thirty days.
Section 50-19-1840. Except as otherwise provided, any person violating any of the provisions of this article shall be guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than twenty-five dollars nor more than one hundred dollars or sentenced to serve not more than thirty days.
Article 31
Fishing in Lake Marion, Lake Moultrie, the Diversion
Canal, the Tail Canal, and Certain Portions of
Congaree and Wateree Rivers
Section 50-19-1910. The holder of a temporary license to fish in such waters granted to a nonresident may also fish in any private pond in Clarendon County during the time authorized above, if the holder has the pond owner's permission.
Section 50-19-1920. The regulations for fishing in the waters of Lake Marion, Lake Moultrie, the Diversion Canal connecting these lakes and the Tail Canal shall be as follows:
(1) No person shall have any rifle in his possession in any boat.
(2) All other state game and fish laws are applicable for the Santee-Cooper lakes, canals and waters.
The department may change or alter the regulations.
Section 50-19-1925. The department shall promulgate regulations to manage and protect fisheries in the Santee River.
Section 50-19-1930. Any person violating any of the provisions of Sections 50-19-1910 and 50-19-1920 shall, upon conviction, pay a fine of not less than twenty-five dollars nor more than one hundred dollars, or suffer imprisonment for not more than thirty days.
Section 50-19-1935. The Department of Health and Environmental Control, in conjunction with the Department of Natural Resources shall, from the funds appropriated in the General Appropriations Act, monitor the striped bass fishery in the Wateree-Santee riverine system.
Both departments shall have oversight responsibility for any studies which may be required as a condition of a DHEC permit.
Article 35
Fishing in and Hunting on Certain Portions of
Savannah River in Game Zone No. 2
Section 50-19-2210. The department may negotiate a reciprocal agreement with the authorities of the state of Georgia whereby any resident of Georgia properly licensed by that state may fish anywhere in the Savannah River, but not in its tributaries, below Clark Hill Dam with no other license being required, provided any resident of this State, properly licensed by this State, shall be permitted the same fishing privilege.
Section 50-19-2215. The department may negotiate a reciprocal agreement with the authorities of the State of Georgia whereby any resident of Georgia properly licensed by that State may fish anywhere in the Savannah River, but not its tributaries, in that area between the highway bridge between Calhoun Falls, South Carolina, and Elberton, Georgia, and the Hartwell Reservoir Dam, including all waters impounded by the Richard B. Russell Dam.
Section 50-19-2220. In the waters of the Savannah River between the Stevens Creek Dam and the highway bridge between Calhoun Falls, South Carolina, and Elberton, Georgia, including the waters impounded by the Stevens Creek Dam and the Clark Hill Dam, all in Game Zone 2, no person shall have any rifle in his possession in any boat nor shall any person fire a rifle within one hundred yards from the shoreline of such waters. Any rifles being used in violation of this section shall be confiscated and sold at public auction under the procedure provided in Section 50-11-2080.
Section 50-19-2230. The department with the approval of a majority of the legislative delegations of the counties adjacent to the waters of the Savannah River between the Stevens Creek Dam and the highway bridge between Calhoun Falls, South Carolina, and Elberton, Georgia, including the waters impounded by the Stevens Creek Dam and the Clark Hill Dam, all in Game Zone No. 2, may amend the regulations set out in Section 50-19-2220 or make new ones as they become desirable.
Section 50-19-2240. The department shall also negotiate for and enter into a reciprocal agreement with the authorized officials of the state of Georgia, adopting rules and regulations for the preservation and propagation of fish and game within the area described in Section 50-19-2220, the recognition of the licenses and permits of one state by the other and the enforcement of the laws of the two states over the area involved. If necessary to reach such an agreement or it is deemed advisable for the better protection and management of the game and fish of this area, the department may increase the bag limit to not more than twelve bass and thirty other game fish in possession at one time and may make and agree to other reasonable rules and regulations with the Georgia authorities, not inconsistent with the laws of this State, and may change or alter them from time to time. Any rules and regulations so adopted by the authorized officials of the two states on the above subjects and not inconsistent with the laws of this State shall have the force and effect of law, after being published in newspapers circulating in the area at least once a week for three weeks and after copies thereof have been filed with the Secretary of State, as provided by law. Any reciprocal agreement so entered into shall contain a provision that either party thereto may cancel it upon ninety days' written notice to the other party.
Section 50-19-2250. Any person violating any of the provisions of this article, except Section 50-19-2210, or any of the rules or regulations adopted and promulgated under the authority thereof, is guilty of a misdemeanor and shall, upon conviction thereof, be subject to a fine of not less than ten nor more than one hundred dollars or imprisonment for not more than thirty days.
Article 37
Fishing in Lake Greenwood and Boyd's Mill
Section 50-19-2310. There shall be a closed season on the catching of striped bass in the waters of Lake Greenwood and Boyd's Mill, and it shall be unlawful for any person to have in possession on or immediately adjacent to the waters of the lake and Boyd's Mill any striped bass. The possession by any person of striped bass on or within one-half mile of the waters of the lake and in tributaries set forth in Section 50-19-2320 shall be deemed prima facie a violation of the provisions hereof. However, the season for catching striped bass may be opened at such time as investigation reveals the desirability of opening such season, and such opening may be done by the department with the approval of a majority of the members of the House of Representatives and a majority of the Senators from the counties adjoining the lake.
Section 50-19-2330. The department may use whatever methods are deemed wise and expedient to remove and control nongame fish in the waters of Lake Greenwood and its immediate tributaries and Boyd's Mill, provided that such methods are conducted under the supervision of personnel of the department.
Section 50-19-2400. Fishing shall be permitted from the bank of Lake Greenwood in that portion of the lake situate within the State Park in Greenwood County.
Section 50-19-2410. Except as otherwise provided in this article, any person found guilty of violating any of the provisions of this article except Section 50-19-2390 shall be fined not less than twenty-five dollars nor more than one hundred dollars or imprisoned for not more than thirty days, or both.
Article 39
Fishing in Keowee-Toxaway Lakes in Oconee and
Pickens Counties
Section 50-19-2510. The regulations for fishing in the waters of Keowee-Toxaway Lakes in Oconee and Pickens Counties shall provide that no person shall have any rifle in his possession in any boat nor shall any person fire a rifle within one hundred yards from the shoreline of such waters.
Section 50-19-2520. The department, with the approval of a majority of the legislative delegations of the counties of Oconee and Pickens, may amend these regulations or make new ones as they become desirable.
Section 50-19-2530. Any person violating any of the provisions of this article or any of the rules or regulations adopted and promulgated under the authority thereof is guilty of a misdemeanor and shall, upon conviction, be subject to a fine of not less than ten nor more than one hundred dollars or imprisonment for not more than thirty days.
Article 41
Fishing in Waters of Hartwell Reservoir
Section 50-19-2610. The department may negotiate a reciprocal agreement with the authorities of the state of Georgia whereby any resident of Georgia properly licensed by that state may fish anywhere in the Hartwell Reservoir, with no other license being required, provided, any resident of this State, properly licensed by this State, shall be permitted the same privilege of fishing anywhere in the Hartwell Reservoir, with no other license being required.
Section 50-19-2620. The regulations for fishing in the waters of Hartwell Reservoir shall provide that no person shall have any rifle in his possession in any boat nor shall any person fire a rifle within one hundred yards from the shoreline of such waters.
Section 50-19-2630. The department, with the approval of a majority of the legislative delegations of the counties adjacent to the waters of Hartwell Reservoir, may amend these regulations or make new ones as they become desirable.
Section 50-19-2640. The department shall also negotiate for and enter into a reciprocal agreement with the authorized officials of the state of Georgia, adopting rules and regulations for the preservation and propagation of fish and game within the area, the recognition of the licenses and permits of one state by the other and the enforcement of the laws of the two states over the area involved. If necessary to reach such agreement or it is deemed advisable for the better protection and management of the game and fish of this area, the department may increase the bag limit prescribed by item (1) of Section 50-19-2620 to not more than twelve bass and thirty other game fish in possession at one time and may make and agree to other reasonable rules and regulations with the Georgia authorities, not inconsistent with the laws of this State, and may change or alter them from time to time. Any rules and regulations so adopted by the authorized officials of the two states, on the above subjects and not inconsistent with the laws of this State, shall have the force and effect of law after being published in newspapers circulating in the area at least once a week for three weeks and after copies thereof have been filed with the Secretary of State, as provided by law. Any reciprocal agreement so entered into shall contain a provision that either party thereto may cancel it upon ninety days' written notice to the other party.
Section 50-19-2650. Any person violating any of the provisions of this article or any of the rules or regulations adopted and promulgated under the authority thereof is guilty of a misdemeanor and shall, upon conviction, be fined not less than ten nor more than one hundred dollars or imprisoned for not more than thirty days.
Article 43
Fishing in Boundary Streams Above Hartwell
Reservoir
Section 50-19-2710. Notwithstanding any provision of law to the contrary, the department is hereby authorized to establish and enforce such regulation of fishing in the boundary streams between this State and the state of Georgia above the Hartwell Reservoir as may be necessary to make the regulation by the two states uniform. The department is further authorized to enter into or modify such reciprocal agreements with the state of Georgia as may be necessary to accomplish the purpose of this section.
Article 45
Gigging for Fish in Salt Waters in Game Zone No. 6
Section 50-19-2810. All nonresidents of this State, before gigging for fish in the salt waters in Game Zone No. 11, shall first procure a nonresident gigging license, the fee for which is twenty-five dollars and twenty-five cents. Any person violating the provisions of this section, upon conviction, must be punished by a fine of not less than fifty dollars or imprisonment for not less than thirty days for the first offense. The fine or imprisonment for each subsequent violation must be double the amount of the previous fines and imprisonments imposed upon the violator.
Section 50-19-2820. All residents of this State or freeholders of the counties within the zone, before gigging for fish in the salt waters in Game Zone No. 11, shall procure a resident gigging license, the fee for which is one dollar and ten cents.
Any person violating the provision of this section, upon conviction, must be punished by a fine of not less than ten dollars or imprisoned for a period of not less than ten days for the first offense. The fine or imprisonment for each subsequent offense must be double that previously imposed against the violator.
Section 50-19-2830. The license must be procured from any county treasurer within Game Zone No. 11, his designated agents, or any authorized official of the department.
Section 50-19-2840. Upon conviction of any person of a second or subsequent violation of this article, any boats and equipment used by such person in such second or subsequent violation shall be confiscated and sold by the sheriff of the county wherein the violation occurred.
Section 50-19-2850. The proceeds from sales made under Section 50-19-2840 and all license fees and fines collected under the provisions of this article shall be forwarded monthly to the department.
Article 49
Fishing in Fairforest Creek in Union and
Spartanburg Counties
Section 50-19-3010. Except as provided in Section 50-13-550, it shall be unlawful for any person to fish or catch fish of any kind in Fairforest Creek in Union and Spartanburg Counties, Game Zone No. 4, except with hook and line. Any person violating this section shall be guilty of a misdemeanor and shall be punished by a fine of not less than ten dollars nor more than one hundred dollars or by imprisonment for not less than ten days nor more than thirty days."
Names revised; commission changed to board
SECTION 1268. Chapter 20, Title 50 of the 1976 Code is amended to read:
"CHAPTER 20
South Carolina Recreational Fisheries Conservation
and Management Act of 1991
Section 50-20-10. This chapter may be cited as the South Carolina Recreational Fisheries Conservation and Management Act of 1991.
Section 50-20-20. As used in this chapter, unless the context otherwise requires:
(1) `Fishing' means:
(a) catching, taking, landing, or harvesting marine fish;
(b) attempting to catch, take, land, or harvest marine fish;
(c) other activity reasonably expected to result in the catching, taking, landing, and harvesting of marine fish.
(2) `Recreational fishermen' includes persons engaging or intending to engage in fishing for recreation only.
(3) `Marine fish' includes all species of finfish, oysters, and clams in South Carolina's tidal waters.
(4) `Charter fishing vessel' means a vessel used to transport marine recreational fishermen for hire and includes charter, party, and head boats.
(5) `Tidal waters' means waters where the tide regularly rises and falls and in the areas defined in Section 50-17-30 corresponds to the existing freshwater/saltwater dividing lines seaward.
(6) `Public fishing pier' refers to piers open to the public and which charge a fee to fish.
Section 50-20-30. (A) No person sixteen years of age or older may engage in fishing for recreation in South Carolina's tidal waters without a marine recreational fishing stamp issued pursuant to this chapter, except as provided in Section 50-17-660 and this chapter.
(B) The stamp must be validated by the signature of the licensee across the face of the stamp.
(C) No vessel may transport marine recreational fishermen for a fee without a charter fishing permit. No person may charge a fee to the public to fish from a pier without obtaining a marine public fishing pier permit.
(D) The stamp and permit must be available for inspection at all times.
Section 50-20-40. (A) Charter fishing vessels shall maintain a log of the number of persons carried each day, number of hours engaged in fishing, and number and weight of fish by species caught each day.
(B) Public fishing piers shall maintain a log of the number of persons fishing from that structure each day.
(C) The logs must be submitted to the department once a month. A subsequent permit must not be issued unless the requirements of this section are met.
Section 50-20-50. The following stamps and permits must be made available throughout the State by the department or its authorized agents for issuance or sale and are issued for the time provided in Section 50-9-20:
(1) marine recreational fishing stamp for residents and nonresidents. The annual fee for the issuance of the stamp is five dollars and fifty cents. Fifty cents may be retained by the issuing agent, and the balance must be paid to the department;
(2) public fishing pier permit. The annual fee for the issuance of the permit is three hundred fifty dollars;
(3) charter vessel permit. The annual fee for the issuance of the permit is one hundred fifty dollars for vessels licensed to carry six or fewer passengers, two hundred fifty dollars for vessels licensed to carry seven to forty-nine passengers, and three hundred fifty dollars for vessels licensed to carry more than forty-nine passengers. However, the annual fee for the issuance of the permit is forty dollars if the vessel carries only the passengers who hire the vessel.
Section 50-20-60. The following are exempt from purchasing the stamp:
(1) fishermen using a hook and line from the shore or a shore-based structure;
(2) fishermen fishing from a charter fishing vessel with a valid charter fishing permit or from a public fishing pier with a valid public fishing pier permit;
(3) members of the United States Armed Forces who are residents of South Carolina stationed outside this State upon presentation of official furlough or leave papers;
(4) persons exempted under Article 9, Chapter 9 of Title 50.
Section 50-20-70. If a coastal state which has or establishes a marine recreational fisheries stamp, license, or permit recognizes through statute, regulation, or reciprocal agreement the validity of a South Carolina marine recreational fisheries stamp or permit within its boundaries, South Carolina recognizes the validity of a marine recreational fisheries stamp, license, or permit held by residents of that state.
Section 50-20-80. The department may produce additional stamps as commemorative or collector's items which must be sold for not less than five dollars and fifty cents. The proceeds must be retained by the department.
Section 50-20-90. The department shall create and design the stamp and permit and develop marine recreational fisheries prints and related articles. The department is responsible for the administration, sale, and distribution of the stamps, permits, prints, and related articles.
Section 50-20-100. (A) Monies from the sale of the stamps, permits, prints, and related articles must be paid into a special account separate from the general fund. Monies in the account are carried forward each year and may be used to match available federal funds. They may be used only for the following programs which directly benefit marine recreational fishing:
(1) development of marine recreational fishing facilities;
(2) scientific research relating to management of marine recreational fisheries;
(3) protection, maintenance, or enhancement of marine habitat important to the continued production of fish stocks and their food sources of significance to marine recreational fishing;
(4) administrative and coastal enforcement activities for the issuance of stamps and permits and development of prints and related articles;
(5) enforcement of the laws and fishery management regulations relating to marine recreational fisheries, including habitat protection;
(6) other programs directly benefiting marine recreational fishing recommended by the Marine Recreational Fisheries Advisory Board provided in this chapter.
(B) Funds from the special account expended for administration and coastal enforcement activities in subsection (A)(4) and (5) may not exceed twenty-five percent of monies paid into the account annually from the sale of stamps, permits, prints, and related articles.
(C) Funds from the special account must be used to publish an annual report to be made available to stamp and permit holders to indicate how the previous year's funds were utilized.
Section 50-20-110. (A) A Marine Recreational Fisheries Advisory Board is established to assist in prioritizing the expenditures of monies received in the special account. The board is composed of:
(1) one member of the board of the Department of Natural Resources;
(2) two at-large members appointed by the Governor;
(3) one member from each of the following coastal counties appointed by a majority of the respective legislative delegations: Beaufort, Charleston, Colleton, Georgetown, Horry, and Jasper.
(B) The members in subsection (A)(2) and (3) shall represent the marine recreational fishing community.
(C) Official expenses for board members are as provided by law for state employees on public business and must be paid from revenues from the sale of stamps, permits, prints, and related articles.
(D) The terms of members in subsection (A)(2) and (3) are for four years and are limited to two consecutive terms.
Section 50-20-120. A person violating this chapter, upon conviction, must be fined not more than two hundred dollars or imprisoned not more than thirty days."
Definitions; certain divisions changed to department; provisions for enforcement employment, and regulations and names revised
SECTION 1269. Chapter 21, Title 50 of the 1976 Code is amended to read:
"CHAPTER 21
Equipment and Operation of Watercraft
Article 1
General Provisions
Section 50-21-10. As used in this chapter unless the context clearly requires a different meaning:
(1) `Vessel' means every description of watercraft, other than a seaplane on the water, used or capable of being used as a means of transportation on water.
(2) `Boat' means any vessel
(a) Manufactured or used primarily for noncommercial use; or
(b) Leased, rented, or chartered to another for the renters' noncommercial use; or
(c) Engaged in the carrying of six or fewer passengers.
(3) `Motor boat' means any vessel equipped with propulsion machinery of any type whether or not such machinery is the principal source of propulsion.
(4) `Associated equipment' means
(a) Any system, part, or component of a boat as originally manufactured or any similar part or component manufactured or sold for replacement, repair, or improvement of such system, part, or component;
(b) Any accessory or equipment for, or appurtenance to a boat and
(c) Any marine safety article, accessory or equipment intended for use by a person on board a boat; but
(d) Excluding radio equipment.
(5) `Owner' means a person, other than a lienholder, who claims lawful possession of a vessel by virtue of legal title or equitable interest therein which entitles him to such possession.
(6) `Waters of the State' means any waters within the territorial limits of the State.
(7) `Person' means an individual, partnership, firm, corporation, association, or other legal entity.
(8) `Operator' means the person who operates or has charge or command of the navigation or use of a vessel.
(9) `Passenger' means every person carried on board a vessel other than:
(a) The owner or his representative
(b) The operator
(c) Bona fide members of the crew engaged in the business of the vessel who have contributed no consideration for their carriage and who are paid for their services; or
(d) Any guest on board a vessel which is being used exclusively for pleasure purposes who has not contributed any consideration, directly, or indirectly, for his carriage.
(10) `Undocumented vessel' means a vessel which does not have and is not required to have a valid marine document issued by the United States Coast Guard or Federal agency successor thereto.
(11) `Use' means operate, navigate, or employ.
(12) `Reportable boating accident' means an accident, collision, or other casualty involving a vessel subject to this chapter which results in loss of life, injury which results in loss of consciousness, necessity for medical treatment, necessity to carry person from scene, disability which prevents the discharge of normal duties beyond the day of casualty, or actual physical damage to property including vessels in excess of one hundred dollars.
(13) `Boat livery' means a business which holds any vessel for renting, leasing or charting.
(14) `Department' means the South Carolina Department of Natural Resources.
Section 50-21-20. It is the policy of this State to promote safety for persons and property in and connected with the use, operation, and equipment of vessels and to promote uniformity of laws relating thereto.
Section 50-21-30. (1) The provisions of this chapter, and of other applicable laws of this State shall govern the operation, equipment, numbering and all other matters relating thereto whenever any vessel shall be operated on the waters of this State or when any activity regulated by this chapter shall take place thereon; but nothing in this chapter shall be construed to prevent the adoption of any ordinance or local law relating to operation and equipment of vessels the provisions of which are identical to the provisions of this chapter, amendments thereto, or regulations issued thereunder; provided, that such ordinances or local laws shall be operative only so long as and to the extent that they continue to be identical to provisions of this chapter, amendments thereto, or regulations issued thereunder.
(2) Any subdivision of this State may, at any time, but only after three days' public notice make formal application to the department for special rules and regulations with reference to the operation of vessels on any waters within its territorial limits and shall set forth therein the reasons which make such special rules and regulations necessary or appropriate.
(3) The department is hereby authorized to make special rules and regulations with reference to the operation of vessels on waters within the territorial limits of this State.
Section 50-21-40. The administration of this chapter shall be vested in the department. The department shall enforce this chapter through its Natural Resources Enforcement Division.
Section 50-21-45. Officers and employees of the Department engaged in the work of administering and enforcing the provisions of this chapter may administer oaths and acknowledge signatures and must do so without fee.
Section 50-21-50. The director shall employ or assign such clerical, administrative, technical and enforcement personnel as may be required to carry out the provisions of this chapter.
Section 50-21-60. The personnel to be employed for the enforcement of this chapter and all expenses and salaries in connection therewith shall first be submitted to and approved by the Budget and Control Board.
Section 50-21-70. The expenses and cost of administration of this chapter shall at no time exceed the revenue derived through the provisions of this chapter and funds received from the federal government for use in administering boating laws.
Section 50-21-80. Any person employed or elected by this State or political subdivision thereof, whose duty it is to preserve the peace or to make arrests or to enforce the law, including, but not limited to, members of the sheriff's departments, state police, enforcement officers, or deputies or other qualified persons may, upon recommendation of the appropriate agency, be empowered to enforce the provisions of this chapter. The department shall be primarily responsible for enforcement of this chapter and rules and regulations issued thereunder. Any such person shall also have the authority to stop and board any vessel subject to the provisions of this chapter or to any rule or regulation for the purpose of inspection or determining compliance with the provisions of this chapter and is empowered to issue a summons for appearance in court or before a magistrate or make arrest for violations of this chapter or of the rules and regulations prescribed thereunder. Every vessel subject to this chapter if underway and upon being hailed by a designated law-enforcement officer shall stop immediately and lay to, or shall maneuver in such a way as to permit such officer to come aboard.
Section 50-21-85. No person shall operate any vessel displaying, reflecting or flashing a blue light unless a duly commissioned law enforcement officer is on board.
The operator of any vessel being approached by a vessel flashing a blue light shall stop or maneuver in such a way as to permit boarding, so far as possible without endangering his own vessel, and not begin normal movement again until directed by the law enforcement officer or until the vessel flashing a blue light has cleared the immediate area.
The operator of any vessel approaching any area where a vessel flashing a blue light is located or patrolling shall slow his vessel to a no wake speed and shall maintain such speed until clear of the area.
Any person violating the provisions of this section is guilty of a misdemeanor and upon conviction shall be punished as provided in Section 50-21-150.
Section 50-21-90. The department is hereby authorized to inaugurate a comprehensive boating safety and boating educational program, and to seek the cooperation of boatmen, the federal government and other states.
Section 50-21-100. The owner of a boat livery shall cause to be kept a record of the name and address of the person or persons hiring any vessel; the identification number thereof, and the departure date and time, and the expected time of return. The record shall be preserved for at least six months.
Section 50-21-105. The department may tow away and store at the nearest commercial marina or any other suitable facility any unattended watercraft, a watercraft the operator of which is ill, intoxicated, or under a disability which renders him incapable of functioning safely, or other object which constitutes a hazard to navigation and which is not within an anchorage area approved by the United States Coast Guard.
The owner may regain control of the watercraft or other object by proving ownership to the operator of the facility and paying the fee charged for storage.
Section 50-21-110. (1) No person may use any motorboat, boat or vessel, or manipulate any water skis, aquaplane, surfboard, or similar device in a negligent manner so as to endanger the life, limb, or property of any person.
(2) No person may use any motorboat, boat, or vessel, or use any water skis, aquaplane, surfboard, or similar device while under the influence of alcohol, any narcotic drug, barbiturate, marijuana or hallucinogen.
(3) Any person convicted of negligent operation of a vessel or of operating a vessel while under the influence of intoxicating liquids, narcotic drugs, barbiturates, or marijuana, in addition to any other penalties, may be prohibited by the court having jurisdiction of such violation, from operating any vessel on any waters of this State for a period of not more than two years.
Section 50-21-112. (A) A person who, while under the influence of alcohol, drugs, or the combination of alcohol and drugs, operates, navigates, steers, or drives a moving vessel, or is in actual physical control of a moving vessel, or manipulates any moving water skis, moving aquaplane, moving surfboard, or similar moving device upon the waters of this State and does any act forbidden by law or neglects a duty imposed by law, which proximately causes great bodily injury or death of a person other than himself, is guilty of a felony and, upon conviction, must be punished:
(1) by a fine of not less than five thousand dollars nor more than ten thousand dollars and imprisonment for not less than thirty days nor more than ten years when great bodily injury results;
(2) by a fine of not less than ten thousand dollars nor more than twenty-five thousand dollars and imprisonment for not less than one year nor more than ten years when death results.
(B) As used in subsection (A) `great bodily injury' means bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement or protracted loss or impairment of the function of a bodily member or organ.
(C) A person who, while under the influence of alcohol, drugs, or the combination of alcohol and drugs, operates, navigates, steers, or drives a vessel, or is in actual physical control of a moving vessel, or manipulates any moving water skis, moving aquaplane, moving surfboard, or similar moving device upon the waters of this State and does any act forbidden by law or neglects a duty imposed by law, which act or neglect proximately causes damage to property other than his own, or injury other than great bodily injury to a person other than himself, is guilty of a misdemeanor and, upon conviction, must be punished by a fine of not less than one hundred nor more than two hundred dollars or imprisonment for not more than thirty days.
(D) The department must suspend the privilege of a person who is convicted or who pleads guilty or nolo contendere under this section to operate, navigate, steer, or drive a vessel or be in actual physical control of a moving vessel or manipulates any moving water skis, moving aquaplane, moving surfboard, or similar moving device on waters of this State for a period to include any term of imprisonment plus:
(1) three years in the case of death or great bodily injury; or
(2) one year in the case of property damage or injury other than great bodily injury.
(E) A person who, while operating privileges are under suspension, operates, navigates, steers, or drives a vessel or is in actual physical control of a moving vessel or manipulates any moving water skis, moving aquaplane, moving surfboard, or similar moving device, on waters of this State is guilty of a misdemeanor and, upon conviction, must be punished by a fine of not less than one hundred dollars nor more than two hundred dollars or imprisonment for not more than thirty days.
Section 50-21-114. (A) (1) A person who operates, navigates, steers, or drives a vessel, or is in actual physical control of a moving vessel, or manipulates any moving water skis, moving aquaplane, moving surfboard, or similar moving device, which is involved in a reportable boating accident or marine casualty upon the waters of this State, is considered to have given consent to a chemical test or analysis of his breath, blood, or urine to determine the presence of alcohol or drugs if arrested for an offense arising out of acts alleged to have been committed while the person was operating or in physical control of a moving vessel while under the influence of alcohol, drugs, or a combination of them. A test must be administered at the direction of a law enforcement officer who has apprehended a person for operating, navigating, steering, or driving a vessel, or being in actual physical control of a moving vessel, or manipulating any moving water skis, moving aquaplane, moving surfboard, or similar moving device upon the waters of this State while under the influence of alcohol, drugs, or a combination of them. At the direction of the arresting officer, the person first must be offered a breath test to determine the alcohol concentration of his blood. If the person is physically unable to provide an acceptable breath sample because he has an injured mouth, is unconscious, dead, or for any other reason considered acceptable by licensed medical personnel, a blood sample may be taken. If the officer has reasonable grounds to believe the person is under the influence of drugs other than alcohol, the officer may order that a urine sample be taken for testing. If the breath analysis reading is ten one-hundredths of one percent or above by weight of alcohol in the person's blood, the officer may not require additional tests of the person as provided in this chapter.
(2) The breath test must be administered by a person trained and certified by the South Carolina Law Enforcement Division, SLED, using methods approved by SLED. The arresting officer may not administer the tests. Blood and urine samples must be taken by physicians licensed by the State Board of Medical Examiners, registered nurses licensed by the State Board of Nursing, or other medical personnel trained to take the samples in a licensed medical facility. Blood samples or urine samples must be obtained and handled in accordance with procedures approved by SLED. No tests may be administered or samples taken unless the person has been informed that he does not have to take the test or give the samples but that his privilege to operate, navigate, steer, or drive a vessel, or be in actual physical control of a moving vessel, or manipulate any moving water skis, moving aquaplane, moving surfboard, or similar moving device must be suspended or denied for one hundred eighty days if he refuses to submit to the tests.
(3) A hospital, physician, qualified technician, chemist, or registered nurse who takes samples or conducts the test or participates in the process of taking the samples or conducting the test in accordance with this section is not subject to a cause of action for assault, battery, or any other cause contending that the drawing of blood or taking of samples at the request of the arrested person or a law enforcement officer was wrongful. This release from liability does not reduce the standard of medical care required of the person taking the samples or conducting the test. This qualified release also applies to the employer of the person who conducts the test or takes the samples. No person may be required by the arresting officer, or by any other law enforcement officer, to obtain or take any sample of blood or urine.
(4) The person tested or giving samples for testing may have a qualified person of his own choosing conduct additional tests at his expense and must be notified of that right. A person's failure to request additional blood or urine tests is not admissible against the person in a criminal trial. The failure or inability of the person tested to obtain additional tests does not preclude the admission of evidence relating to the tests or samples taken at the direction of the law enforcement officer.
(5) The arresting officer shall provide reasonable assistance to the person to contact a qualified person to conduct additional tests.
(6) SLED shall administer the provisions of this subsection and may promulgate regulations necessary to carry out its provisions. The cost of the tests administered at the direction of the law enforcement officer must be paid from the general fund of the State. A fee of fifty dollars is assessed, at the time of the sentencing, persons convicted of, pleading guilty or nolo contendere to, or forfeiting bond for violating Section 50-21-112. This fee must be forwarded by the county treasurer to the State Treasurer and credited to the general fund of the State to defray any costs incurred by SLED and individuals and institutions obtaining the samples forwarded to SLED.
(B) In any criminal prosecution for a violation of Section 50-21-112 the amount of alcohol in the person's blood at the time of the alleged violation, as shown by chemical analysis of the person's breath or other body fluids, gives rise to the following inferences:
(1) If there was at that time five one-hundredths of one percent or less by weight of alcohol in the person's blood, it is presumed conclusively that the person was not under the influence of alcohol.
(2) If there was at that time in excess of five one-hundredths of one percent but less than ten one-hundredths of one percent by weight of alcohol in the person's blood, that fact does not give rise to any inference that the person was or was not under the influence of alcohol, but that fact may be considered with other competent evidence in determining the guilt or innocence of the person.
(3) If there was at that time ten one-hundredths of one percent or more by weight of alcohol in the person's blood, it may be inferred that the person was under the influence of alcohol.
(C) The provisions of this section may not be construed as limiting the introduction of other competent evidence bearing upon the question of whether or not the person was under the influence of alcohol, drugs, or a combination of them.
(D) A person who is unconscious or otherwise in a condition rendering him incapable of refusal is considered to be informed and not to have withdrawn the consent provided by subsection (A).
(E) If a person under arrest refuses, upon the request of a law enforcement officer, to submit to chemical tests provided in subsection (A), none may be given, but the department, on the basis of a report from the law enforcement officer that the arrested person was operating, navigating, steering, or driving a vessel, or was in actual physical control of a moving vessel, or was manipulating any moving water skis, moving aquaplane, moving surfboard, or similar moving device upon the waters of this State while under the influence of alcohol, drugs, or a combination of them, and that the person had refused to submit to the tests, shall suspend his privilege to perform the activity for one hundred eighty days. The one hundred eighty-day period of suspension begins with the day after the date of the notice required to be given, unless a hearing is requested as provided, in which case the one hundred eighty-day period begins with the day after the date of the order sustaining the suspension. The report of the arresting officer must include what grounds he had for believing the arrested person was conducting the above-mentioned activity while under the influence of alcohol, drugs, or a combination of them. If the arrested person took a chemical breath test but refused to provide a blood or urine sample, the report of the arresting officer must include the officer's grounds for believing the arrested person was under the influence of drugs other than alcohol. If a person who refuses, upon the request of a law enforcement officer, to submit to chemical tests as provided in subsection (A), pleads guilty or nolo contendere to, or forfeits bond for a violation of Section 50-21-112, within thirty days of arrest, the period of the suspension under this section must be canceled.
(F) Upon suspending the operating privilege of a person, the department immediately shall notify the person in writing and upon his request give him an opportunity for a hearing as provided in Sections 50-9-1050(b) and 50-9-1060. The review must be scheduled by the department within twenty days after the receipt of the request. The scope of the hearing is limited to the issues of whether the person was placed under arrest, whether the person had been informed that he did not have to take the tests but that his privilege to operate a vessel would be suspended or denied if he refused to submit to the tests, and whether he refused to submit to the tests upon request of the officer. Upon review, the department either shall rescind its order of suspension or, if there is good cause, continue the suspension of the privilege.
(G) If a boating accident or marine casualty involves a fatality, the coroner having jurisdiction, within forty-eight hours of receiving notification of the death, shall direct that a chemical blood test to determine blood alcohol concentration or the presence of drugs be performed on the deceased and that the results of the test be recorded properly in the coroner's report.
Section 50-21-115. When the death of any person ensues within one year as a proximate result of injury received by the operation of a boat in reckless disregard of the safety of others, the person operating the boat shall be guilty of reckless homicide. Any person convicted of reckless homicide or any person who enters a plea of guilty of reckless homicide and receives sentence thereon shall be punished by a fine of not less than one thousand dollars nor more than five thousand dollars or by imprisonment for not more than five years, or both. Any person convicted of reckless homicide, involuntary manslaughter, manslaughter or murder in the operation of a boat shall be prohibited by the court having jurisdiction of such violations from operating any boat in the waters of this State for a period of not more than five years.
Section 50-21-120. Neither the owner of a boat livery nor his agent or employees shall permit any of his vessels to depart from his premises unless it shall be in sound and safe operating condition, have a valid registration, be properly numbered and has been provided, either by the owner or the renter, with the equipment required pursuant to Section 50-21-610 and any rules and regulations made pursuant thereto; and the owner of a boat livery shall be liable for such damage or injury which may result directly from his failure to meet the requirements of this paragraph; provided, however, that readily identifiable livery boats of less than twenty-six feet in length leased or rented to another for the latter's noncommercial use for less than seven days may have the registration certificate retained ashore by the owner or his representative.
The owner of a vessel shall be liable for any injury or damage occasioned by the negligent operation of such vessel whether such negligence consists of a violation of the provisions of the statutes of this State or neglecting to observe such ordinary care in such operation as the rules of common law require. The owner shall not be liable, however, unless such vessel is being used with his or her express or implied consent or is in the possession of any person or organization legally responsible therefor. It shall be presumed that such vessel is being operated with the knowledge and consent of the owner if, at the time of the injury or damage, it is under control of a member of the owner's household. Nothing contained herein shall be construed to relieve any other person from any liability which he would otherwise have. Provided, the owner of a boat livery shall not be liable as an owner as provided in this paragraph, and in case of any negligent injury or damage occasioned by the operation of a vessel rented or hired from a boat livery, the operator of the vessel shall be liable as owner thereof.
Section 50-21-125. It is unlawful for any person to swim within fifty feet of a public boat landing or ramp located on a lake or reservoir constructed or developed by an investor-owned utility for hydroelectric generation. For the purposes of this section, a public boat landing or ramp is one owned or maintained by an investor-owned utility for hydroelectric generation and is available to the public at large. The no swimming area must be clearly marked and signs must be posted to give public notice that no swimming is allowed in the area. Watercraft shall slow to no wake speed when operated within two hundred feet of the landing or ramp. The department shall issue a sufficient number of signs to inform operators of motorboats that the area is a no wake zone. The signs must have printed on them `SLOW TO NO WAKE SPEED'. The provisions of this section do not apply in that portion of Game Zone No. 4 in Lancaster County.
Section 50-21-130. (1) It shall be the duty of the operator of a vessel involved in a collision, accident, or other casualty, so far as he can do so without serious danger to his own vessel, crew, passengers and guests, to render to other persons affected by the collision, accident, or other casualty such assistance as may be practicable and as may be necessary in order to save them from or minimize any danger caused by the collision, accident, or other casualty, and also to give his name, address, and identification of his vessel in writing to any person injured and to the owner of any property damaged in the collision, accident, or other casualty.
(2) Any person who complies with subsection (1) of this section or who gratuitously and in good faith renders assistance at the scene of a vessel collision, accident, or other casualty without objection of any person assisted, shall not be held liable for any civil damages as a result of the rendering of assistance or for any act or omission in providing or arranging salvage, towage, medical treatment, or other assistance where the assisting person acts as an ordinary, reasonably prudent man would have acted under the same or similar circumstances.
(3) In the case of a reportable accident, the operator of any vessel involved shall file with the appropriate agency of the State wherein the accident occurred a full description of the accident, including such information as the agency may, by regulation, require. If the operator or owner is incapable of making such report the investigating officer shall submit such report.
(4) Any such report shall be without prejudice, shall be for the information of the department and shall not be open to public inspection. Provided, however, the report shall be made available upon written request to any person injured or damaged in the accident, or to his attorney. The fact that such report has been made shall be admissible in evidence solely to show compliance with this section but no such report nor any part thereof nor any statement contained therein shall be admissible as evidence for any purpose in any civil trial.
(5) The department shall make regulations to administer a State Casualty Reporting System which shall be in conformity with that established by the United States Coast Guard.
Section 50-21-135. There is established a no wake zone on the Ashley River within one hundred yards of the Dolphin Cove Marina in Charleston County. These boundaries must be marked clearly with signs. The signs must be designed and installed as specified by the department.
Section 50-21-137. There are established no wake zones on the Ashley River within five hundred feet of properties designated as National Historic Landmarks or listed on the National Register of Historic Places lying upstream from Interstate 526. These boundaries must be marked clearly with signs. The signs must be designed and installed as specified by the department.
Section 50-21-139. There is established a no wake zone to begin at the Highway 52 Bridge across the Tail Race Canal in Berkeley County and extending to a point one hundred yards below the Dock Restaurant located on the west bank of the canal. These boundaries must be clearly marked with signs. The signs must be designed and installed as specified by the department.
Section 50-21-140. In accordance with any request duly made by an authorized official or agency of the United States, any information compiled or otherwise available to the department pursuant to Sections 50-21-310 and 50-21-130 shall be transmitted to the official or agency of the United States for analytical and statistical purposes.
Section 50-21-145. On Lakes Keowee and Jocassee in Pickens and Oconee Counties all watercraft must slow to no wake speed when operating within two hundred feet of a public boat landing or ramp and it is unlawful for any person to swim within fifty feet of any public boat landing or ramp. The department shall issue and cause to be erected a sufficient number of signs to inform operators of motorboats that the area is a no wake zone.
Section 50-21-146. A person who discharges a firearm at a public boat landing or ramp is guilty of a misdemeanor and, upon conviction, must be punished as provided in Section 50-1-130.
Section 50-21-147. There is established a no wake zone to begin one hundred yards in a southwesterly direction upriver of the Kiawah Docking Facility and extending to a point one hundred yards in a northeasterly direction downriver of the facility. These boundaries must be clearly marked with signs. Expenses for the establishment and maintenance of signs in the area must be borne by the owners of the Kiawah Island Docking Facility. The signs must be designed and installed as specified by the department.
Section 50-21-148. It is unlawful to obstruct any pier, dock, wharf, boat ramp, or the access area to the facilities. Any vessel, vehicle, or other object left unattended which obstructs any of the facilities or the access to them may be removed entirely at the risk and expense of the owner. The department, with the advice of the Department of Transportation, shall erect signs at appropriate locations advertising the provisions of this section. Any person violating the provisions of this section is guilty of a misdemeanor and upon conviction must be fined not less than twenty-five dollars nor more than one hundred dollars or imprisoned for not more than thirty days.
Section 50-21-149. There is established a no wake zone on the Congaree River south of the City of Columbia between the Old Government Locks and the City of Cayce Pumping Station. All watercraft shall slow to a no wake speed at all times while operating in the zone. The department shall erect a sufficient number of signs to inform the boating public of the no wake zone.
Section 50-21-150. (1) Any person who violates any provision of Section 50-21-110 or the implementing regulations is guilty of a misdemeanor and upon conviction must be fined not less than fifty dollars nor more than two hundred dollars or be imprisoned for not more than thirty days for each violation.
(2) Any person violating any provision of this chapter or any regulations adopted by the department pursuant to this chapter where the penalty is not specified is guilty of a misdemeanor and upon conviction shall be fined not more than one hundred dollars or be imprisoned for not more than thirty days for each violation.
Section 50-21-160. All fees or fines collected pursuant to this chapter must be held and utilized for the purpose of paying the expenses of the Natural Resources Enforcement Division of the department and other department operations. Twenty-five percent of all fines must be retained by the county in which the fine is levied.
Section 50-21-170. The statutes and regulations, including the United States Coast Guard Navigational Rules that pertain to watercraft and watercraft safety, associated marine equipment, performance and operation of watercraft, standard numbering and registration of watercraft, and boating accident reporting as enacted by the Congress of the United States or as promulgated by the appropriate department of the United States government, are the law of the State of South Carolina. Any person violating the provisions of the statutes or regulations, upon conviction, must be punished as provided in Section 50-21-150.
Article 3
Numbering
Section 50-21-310. Every vessel using the waters of this State shall be numbered except those exempt by Section 50-21-320. No person shall operate or give permission for the operation of any such vessel on such waters unless the vessel is numbered in accordance with this chapter or in accordance with applicable Federal law or in accordance with a Federally-approved numbering system of another state and unless
(1) The certificate of number issued to such a vessel is on board and in full force and effect.
(2) The identifying number set forth in the certificate of number is displayed on each side of the forward half of the vessel.
(3) The decals issued by the department are attached to each side of the bow of the boat within six inches following the identifying number. Such decals, when a certificate of number is issued or renewed, shall be deemed a part of the registration number.
Section 50-21-320. (1) A vessel shall not be required to be numbered under this chapter if it is:
(a) Covered by a certificate of number in full force and effect which has been issued to it pursuant to Federal law or a federally approved numbering system of another state; provided, that such vessel shall not be used on the waters of this State for a period in excess of ninety consecutive days.
(b) From a country other than the United States and temporarily using the waters of this State.
(c) A vessel whose owner is the United States except recreational type vessels.
(d) A vessel whose owner is the United States, a state or political subdivision thereto used for governmental purposes and which is clearly identifiable as such.
(e) A vessel's lifeboat, if the boat is used solely for lifesaving purposes.
(f) A vessel belonging to a class of boats which has been exempted from numbering by the department after the department has found that the federal government has exempted such vessel or class of vessels from their numbering provisions or as otherwise permitted by the federal government.
(g) Documented by the United States Coast Guard or a Federal agency successor thereto.
(h) When operating temporarily by virtue of visible evidence that a recent application for a certificate of number has been submitted.
(i) Sailboats and paddle boats when no propulsion machinery of any description is installed in or attached to the boat.
(2) Nothing in this chapter prohibits the numbering of any undocumented vessel hereunder upon request by the owner even though such vessel is exempt from the numbering requirements of this chapter.
Section 50-21-330. In the event that an agency of the United States Government shall have in force an overall system of identification (numbering) for vessels within the United States, the numbering system employed pursuant to this chapter by the department shall be in conformity therewith.
Section 50-21-340. The owner of each motorboat requiring numbering by this chapter shall file an application for a number with the department on forms approved by it. The application shall be signed by the owner of the motorboat and shall be accompanied by a fee of ten dollars. Upon receipt of the application in approved form, the department shall enter the same upon the records of its office and issue to the applicant a certificate of number stating the number awarded to the motorboat and the name and address of the owner. The certificate of number shall be pocket size.
Section 50-21-350. The department may issue any certificate of number directly or may authorize any person to act as agent for the issuing thereof. In the event that a person accepts such authorization, he may be allotted a block of numbers and certificates therefor which upon assignment and issue in conformity with this chapter and with any rules and regulations of the department adopted pursuant to this chapter shall be valid as if assigned and issued directly by the department.
Section 50-21-360. The owner shall paint on or attach to each side of the forward half of the vessel the identification number in such a manner as may be prescribed by rules and regulations of the department; in order that it may be clearly visible the number shall be maintained in legible condition. No number other than the number validly assigned to a vessel shall be painted, attached or otherwise displayed on each side of the forward half of such vessel. Only one valid number may be displayed at any time.
Section 50-21-370. Every certificate of number awarded pursuant to this chapter shall continue in full force and effect for a period of three years unless sooner terminated or discontinued in accordance with the provisions of this chapter. Certificates of number may be renewed by the owner in the same manner provided for in the initial securing of such certificates. The department shall fix a day and month of the year on which certificates of number due to expire during the calendar year shall lapse and no longer be of any force and effect unless renewed pursuant to this chapter.
Section 50-21-380. (A) When the ownership of a motorboat changes, the purchaser shall file an application for transfer of registration, together with the payment of a fee of three dollars, and a certificate of transfer must be awarded. Such application for transfer must be made by the purchaser within twenty days from date of purchase. The purchaser may operate the motorboat for a period of thirty days while the transfer of registration is being completed and may prove his ownership by producing the bill of sale or copy during the thirty-day period.
(B) The provisions of this section requiring a fee do not apply to any watercraft owned by volunteer rescue squads used exclusively for the purposes of the squads.
Section 50-21-390. (1) The owner shall furnish the department written notice of the transfer of all or any part of his interest other than the creation of a security interest in a vessel numbered in this State pursuant to this section, or the destruction, abandonment or documentation of such vessel within fifteen days thereof. Such transfer, destruction, abandonment or documentation shall terminate the certificate of number for such vessel except that in the case of a transfer of a part interest which does not affect the owner's right to operate such vessel, such transfer shall not terminate the certificate of number.
(2) No further registration shall be allowed an owner who does not comply with this section.
(3) The certificate of number is invalid when the person whose name appears on the certificate involuntarily loses his interest in the numbered vessel by legal process.
Section 50-21-400. Any holder of a certificate of number shall notify the department in writing within fifteen days if his address no longer conforms to the address appearing on the certificate and shall, as part of such notification, furnish the department with his new address.
Section 50-21-410. Any person may request from the department vessel numbering and registration information which is retrievable from vessel numbering system records of the issuing authority. When the department is satisfied that the request is reasonable and related to a boating safety purpose, the information shall be furnished upon payment by such person of the costs of retrieval and furnishing of the information requested, except the entire file need not be sold or issued if the department deems otherwise.
Section 50-21-420. No vessel constructed after November 1, 1972, shall be offered for sale in this State unless the hull identification number is permanently displayed and affixed in accordance with United States Coast Guard rules and regulations.
Article 5
Construction, Equipment and Safety Standards
Section 50-21-610. (1) The department may promulgate regulations which establish boat construction or associated equipment performance or other safety standards.
(2) In order that boatmen may pass from jurisdiction to jurisdiction in an unhindered manner:
(a) Regulations promulgated by the department which establish any boat construction or associated equipment, performance or other safety standard shall be identical to Federal Regulations for enforcement purposes except that regulations requiring the carrying or using of marine safety articles to meet uniquely hazardous conditions or circumstances within this State may be adopted; and if regulations for such safety articles are not disapproved by the United States Coast Guard, regulations shall not be in conflict with Federal requirements;
(b) Operational regulations and other equipment regulations such as for mufflers shall not be in conflict with Federal requirements.
Article 7
Aids to Navigation and Regulatory Markers
Section 50-21-710. (1) As used in this section:
(a) `Aids to navigation' means any device designed or intended to assist a navigator to determine his position or safe course or to warn him of danger or obstructions to navigation.
(b) `regulatory markers' means any device which indicates to a vessel operator the existence of dangerous areas as well as those which are intended to restrict or control, such as speed zones and areas dedicated to a particular use or to provide general information and directions. This includes bathing markers, speed zone markers, information markers, danger zone markers, boat keep out areas, mooring buoys, wharves, docks, obstructions or hazards to navigation and any activity, object or construction in the waters of the State.
(2) The department may make rules for the uniform marking of the water areas in this State through the placement of aids to navigation and regulatory markers. Such rules shall establish a marking system compatible with the system of aids to navigation prescribed by the United States Coast Guard. No city, county, or person shall mark or obstruct the waters of this State in any manner so as to endanger the operation of watercraft or conflict with the marking system prescribed by the department.
(3) The operation of any vessel within prohibited areas that are marked shall be prima facie evidence of negligent operation.
(4) It shall be unlawful for a person to operate a vessel on the waters of this State in a manner other than that prescribed or permitted by regulatory markers.
(5) No person shall moor or fasten a vessel to or willfully damage, tamper, remove, obstruct, or interfere with any aid to navigation or regulatory marker established pursuant to this chapter.
(6) Any person who violates any provision of an aid to navigation, of a regulatory marker or of a rule and regulation is guilty of a misdemeanor.
Article 9
Waterskis, Aquaplanes, Surfboards and Like Devices
Section 50-21-810. No person shall operate a motorboat on any waters of this State for towing a person or persons on water skis, or an aquaplane, or similar device, unless there is in such motorboat a person, in addition to the operator, in a position to observe the progress of the person or persons being towed or such motorboat is equipped with a wide-angle rear-view mirror mounted in such a manner as to permit the operator of the motorboat to observe the progress of the person or persons being towed.
Section 50-21-820. No person shall operate a vessel on any waters of this State towing a person or persons on water skis, aquaplane, a surfboard, or similar devices, nor shall any person engaged in water skiing, aquaplaning, surfboarding, or similar activity at any time between the hours from sunset to sunrise.
Section 50-21-830. The provisions of Sections 50-21-810 and 50-21-820 do not apply to a performer engaged in a professional exhibition or a person or persons engaged in an activity authorized under Section 50-21-1010.
Section 50-21-840. No person shall operate or manipulate any vessel, tow rope or other device by which the direction or location of water skis, a surfboard, or similar device may be affected or controlled in such a way as to cause the water skis, surfboard, or similar device, or any person thereon to collide with or strike against any object or person.
Section 50-21-850. No person shall water ski or ride on a surfboard or similar object unless he is wearing a ski belt, a life preserver, or similar equipment which will keep the person afloat should he fall or be thrown into the water. Participants in scheduled water ski tournaments or shows sponsored by a recognized water ski club are exempt from this requirement. Persons holding ratings of first class or higher in the American Water Ski Association are exempt from this requirement. Windsurfers and sailboarders are exempt from this requirement.
Section 50-21-855. Notwithstanding any other provision of law or Regulation 123.1 of the department, the department may not enforce any regulation requiring windsurfers and sailboarders to wear or carry personal flotation devices.
Section 50-21-860. As used in this section, `airboat' means a watercraft propelled by air pressure caused by a motor mounted on the watercraft aboveboard.
(A) It is unlawful for a person to operate an airboat on the public waters of this State from the freshwater-saltwater dividing line, established by Section 50-17-35, seaward.
(B) It is unlawful to operate an airboat on waters on that portion of Lake Marion and Santee Swamp west of the I-95 bridge upstream to the confluence of the Congaree and Wateree Rivers during the season for hunting waterfowl.
Any person violating the provisions of this section, upon conviction, must be punished as provided by Section 50-1-130.
The provisions of this section do not apply to the operation of airboats by law enforcement, emergency medical, civil defense, noxious weed control, military personnel, state and federally approved wildlife banding, surveying, biological research programs, and private waters.
Article 11
Regatta and Like Exhibitions
Section 50-21-1010. (1) The department may regulate the holding of regattas, races, marine parades, tournaments or exhibitions which, by their nature, circumstance or location will introduce extra or unusual hazards to the safety of life on any waters of this State. It shall adopt and may amend regulations concerning the safety of boats, motorboats and vessels and persons thereon, either observers or participants. Whenever a regatta, race, marine parade, tournament or exhibition is proposed to be held the person in charge thereof shall, at least thirty days prior thereto, file an application with the department for permission to hold such regatta, motorboat or other boat race, marine parade, tournament or exhibition. The application shall set forth the date, time and location where it is proposed to hold such regatta, race, marine parade, tournament or exhibition and such other information as the department may by regulation require and it shall not be conducted without written authorization of the department.
(2) The provisions of this section shall not exempt any person from compliance with applicable Federal law or regulation but nothing contained herein shall be construed to require the securing of a State permit pursuant to this section if a permit therefor has been obtained from an authorized agency of the United States."
Certain divisions revised or changed to department; names revised
SECTION 1270. Chapter 23, Title 50 of the 1976 Code is amended to read:
"CHAPTER 23
Titling of Watercraft and Outboard Motors
Section 50-23-10. As used in this chapter, unless the context clearly requires a different meaning:
(a) `Vessel' means every description of watercraft other than seaplane used or capable of being used as a means of transportation on water.
(b) `Outboard motor' means any completely self-contained propulsion system, excluding the fuel supply, which is used to propel a watercraft and which is detachable from such watercraft as a unit. No outboard motor of less than five horsepower or its equivalent shall be required to be titled under the provisions of this chapter.
(c) `Security interest' means an interest which is reserved or created by an agreement and which secures payment or performance of an obligation and is valid against third parties generally.
(d) `Owner' means a person, other than a lienholder, having the property in or title to a watercraft or outboard motor. The term includes a person entitled to the use or possession of a watercraft or outboard motor, subject to an interest in another person, reserved or created by agreement and securing payment or performance of an obligation, but the term excludes a lessee under a lease not intended as security or a vendor under a conditional sales contract.
(e) `Lienholder' means a person holding a security interest.
(f) `Person' means an individual, partnership, firm, corporation, association or other entity.
(g) `Division' means the Natural Resources Enforcement Division of the department, the state agency designated to issue certificates of title for watercraft or outboard motors, and its duly authorized representatives.
(h) `Manufacturer' means any person engaged in the business of manufacturing new and unused watercraft, or new and unused outboard motors, for the purpose of sale or trade.
(i) `Marine dealer' means a person who engages primarily or secondarily in the business of buying, selling, exchanging, or servicing watercraft or outboard motors new or used on outright or conditional sale, bailment, lease, chattel mortgage, or otherwise, and who has an established place of business for the sale, trade, and display of such watercraft or outboard motors, or both. A marine dealer shall have a proper business license for each facility not under the same roof and shall sell a minimum of ten watercraft or outboard motors each calendar year to renew his permit. Exclusions must be for sale at organized marine dealer association boat shows. Each dealer shall make application to the department annually for a dealer's permit with a fee of ten dollars for each facility on forms prescribed by the department. A permit is valid for the calendar year and must be displayed in a prominent place for public view. Renewal applications must be received by December fifteenth each year. Permitted marine dealers are eligible for demonstration numbers. A marine dealer licensed under this section shall consent to public or random inspections of his or its business as provided in Section 50-23-185. A dealer refusing the inspections forfeits his license immediately and permanently.
(j) `Marina' means a facility which provides mooring or dry storage for watercraft on a leased or rental basis.
(k) `Boat livery' means a business which holds a vessel for renting, leasing, or chartering.
(l) `Dealer's permit' means a certificate issued by the department to recognize a properly licensed marine business and to extend the privilege of using dealer registration numbers on boats for demonstration purposes and assignment on appropriate documents. Any abuse of these privileges may result in termination of the dealer's permit.
Section 50-23-20. Every owner of a watercraft or outboard motor, or both, principally used in this State shall make application to the department for a certificate of title for the watercraft and a separate certificate of title for the outboard motor.
Section 50-23-24. Neither the owner of a boat livery nor his agent or employees may permit any of his vessels to depart from his premises unless it is registered properly, numbered, and titled.
Section 50-23-30. The provisions of this chapter do not apply to any watercraft which has a valid marine document issued by the Bureau of Customs of the United States Government or a federal agency successor, commercial barges, windsurfers, and watercraft that are propelled exclusively by human power with oars, paddles, or similar devices.
Section 50-23-40. No person shall sell or otherwise dispose of a watercraft or outboard motor without delivering to the purchaser or transferee a certificate of title with such assignment thereon as is necessary to show title in the purchaser or transferee; nor shall any person purchase or otherwise acquire a watercraft or outboard motor without obtaining a certificate of title for it in his name.
Section 50-23-50. (a) No person acquiring a watercraft or outboard motor from another person shall acquire any right, title, claim or interest in or to such watercraft or outboard motor until such person has had issued to him a certificate of title to such watercraft or outboard motor, or delivered to him a manufacturer's or importer's certificate for it; nor shall any waiver or estoppel operate in favor of such person against a person having possession of such certificate of title, or manufacturer's or importer's certificate for such watercraft or outboard motor, for a valuable consideration.
(b) No court in any case at law or in equity shall recognize the right, title, claim or interest of any person in or to any watercraft or outboard motor sold or disposed of, or mortgaged or encumbered, unless evidenced:
(1) By a certificate of title or a manufacturer's or importer's certificate, or
(2) By admission in the pleadings or stipulation of the parties.
Section 50-23-60. (A) Every owner of a watercraft or outboard motor subject to titling under the provisions of this chapter shall make application to the department for the issuance of a certificate of title for such watercraft or outboard motor accompanied by the required fee and upon the appropriate form or forms prescribed and furnished by the department. The application shall be signed by the owner and shall be sworn to before a notary public or other officer empowered to administer oaths. Every application for a certificate of the title shall contain:
(1) The name, residence and mail address of the owner;
(2) For watercraft, a description of such watercraft including its make, model, year, length, the principal material used in construction, builder's hull number, hereinafter defined in Section 50-23-170, and the manufacturer's engine serial number if an inboard; for an outboard motor, its make, model, year, horsepower and manufacturer's serial number;
(3) The date of purchase by the applicant, the name and address of the person from whom the watercraft or outboard motor was acquired, and the names and addresses of any persons having any security interest therein in the order of their priority; and
(4) Such further information as may reasonably be required by the department to enable it to determine whether the owner is entitled to a certificate of title and the existence or nonexistence of security interests in the watercraft or outboard motor.
(B) Every dealer selling or exchanging a watercraft or outboard motor subject to titling under this chapter shall make application to the department for a new title in the name of the purchaser before delivering the watercraft or outboard motor to the purchaser. The application must contain the name and address of any lienholder holding a security interest created or reserved at the time of sale and the date of his security agreement. It must be signed by the dealer showing the assigned dealer identification numbers, as well as by the owner, and the dealer shall mail or deliver the application to the department within twenty days of the sale.
(C) If a dealer buys or acquires a used watercraft or outboard motor for the purpose of resale and such watercraft or outboard motor is already covered by a certificate of title which is surrendered to him by the owner or lienholder at the time of delivery of the watercraft or outboard motor, the dealer need not send the certificate to the department at that time. Upon transferring the watercraft or outboard motor to another person, other than by creation of a security interest, he shall within twenty days of sale execute the assignment and warranty of title by a dealer, showing the name and address of the transferee and any lienholder and the date of his security agreement, in the spaces provided, on the certificate to the department with the transferee's application for a new certificate.
(D) In the event application for certificate of title is made for a watercraft or outboard motor last previously registered in another state or foreign country, the application shall contain or be accompanied by:
(1) Any certificate of title issued by the other state or foreign country;
(2) Any other information or documents the department reasonably requires to establish the ownership of the watercraft or outboard motor and the existence or nonexistence of security interests in it; or
(3) In the event the state or foreign country in which the watercraft or outboard motor was last previously registered does not issue certificates of title, a proper bill of sale or sworn statement of ownership, or any evidence of ownership as may be required by the law of the state or foreign country from which the watercraft or outboard motor was brought into this State, plus any other information or documents the department reasonably requires to establish the ownership of the watercraft or outboard motor and the existence or nonexistence of security interests in it.
(E) An application except those from marine dealers presented after twenty days is subject to a late penalty of ten dollars for the twenty-first day through the thirtieth day and fifteen dollars for the thirty-first day and thereafter.
Section 50-23-70. (A) A fee of three dollars shall accompany each application for a certificate of title, as required by the provisions of this chapter, with the exception of those applications for duplicates of certificates of title which must be accompanied by a fee of one dollar. Any watercraft which is propelled by land with oar, paddle, or similar device shall not require a certificate of title unless the owner requests such a certificate.
(B) The provisions of this section requiring a fee do not apply to the motorboats owned by volunteer rescue squads used exclusively for the purpose of the squads.
Section 50-23-80. (A) The department shall file each application for certificate of title which is received by it, provided it is accompanied by the required fee and complies in all other respects with this chapter. When satisfied that the application is in proper form, that the applicant is the owner of the watercraft or outboard motor, and that there is no security interest in the watercraft or outboard motor not disclosed in the application, the department shall issue a certificate of title to the watercraft or outboard motor.
(B) The department shall maintain a record of all certificates of title issued by it:
(1) Under a distinctive title number assigned to a watercraft or outboard motor;
(2) Under the identification number awarded to a watercraft in accordance with the registration and numbering act of the state in which it is registered. If the State requires outboard motors to be registered separately, the department shall keep the motor registration numbers in its titling records;
(3) Alphabetically, under the name of the owner; and
(4) In the discretion of the department, in any other method it determines.
(C) All records of the department relating to the titling of watercraft or outboard motors shall be public records.
(D) If the department is not satisfied that the applicant for a certificate of title to a watercraft or outboard motor is the bona fide owner of such watercraft or outboard motor and that there is no security interest in it not disclosed in the application, the department shall withhold the issuance of a certificate of title until the applicant reasonably satisfies the department that the applicant is the owner of the watercraft or outboard motor and that there are no undisclosed security interests in it.
Section 50-23-90. (a) Each certificate of title issued by the department shall contain:
(1) The date issued;
(2) The name and address of the owner;
(3) The names and addresses of any lienholders, in the order of priority as shown on the application or, if the application is based on a certificate of title, as shown on the certificate;
(4) The title number assigned to the watercraft or outboard motor;
(5) A description of the watercraft including its make, model, year of manufacture, or year model, registration number and manufacturer's serial number or, if none, the builder's hull number assigned to the watercraft by the department, length, and the principal material used in construction;
(6) On the reverse side of the certificate, spaces for assignment of title by the owner or by the dealer and for a warranty that the signer is the owner and that there are no mortgages, liens or encumbrances on the watercraft or outboard motor except as are noted on the face of the certificate of title; and
(7) Any other data the department prescribes.
(b) A certificate of title issued by the department is prima facie evidence of the facts appearing on it.
Section 50-23-100. Certificates of title shall be issued in duplicate. The copy shall be retained and filed by the department. The original certificate of title shall be mailed to the first lienholder named in it or, if none, to the owner named in it.
Section 50-23-110. (a) No dealer shall purchase or acquire a new watercraft or outboard motor without obtaining from the seller thereof a manufacturer's or importer's certificate.
(b) No manufacturer, importer, dealer or other person shall sell or otherwise dispose of a new watercraft or outboard motor to a dealer for purposes of display and resale without delivering to such dealer a manufacturer's or importer's certificate.
(c) The manufacturer's or importer's certificate must be a uniform or standardized form prescribed by the department and must contain:
(1) a description of watercraft or outboard motor, including its trade name, if any, year of manufacture, series or model, body type, and manufacturer's serial number, length, construction, or horsepower;
(2) certification of date of transfer of watercraft or outboard motor, and name and address of transferee;
(3) certification that this was a transfer of watercraft or outboard motor in ordinary trade and commerce;
(4) the signature and address of a representative of the transferor;
(5) on the reverse side of each manufacturer's or importer's certificate an assignment form, including the name and address of the transferee, a certification that the watercraft or outboard motor is new, and a warranty that the title at the time of delivery is subject only to liens and encumbrances set forth and described in full in the assignment.
Section 50-23-120. (a) The owner at the time of delivery of the watercraft or outboard motor shall execute the assignment and warranty of title to the transferee in the space provided on the back of the certificate of title. In the event the title is voided, due to a change, cancellation of an assignment on a title due to error, or failure of a purchase to materialize the owner shall make application for a duplicate title within five days.
(b) The transferee or purchaser shall obtain a new certificate of title by application to the department accompanied by the required fee and upon the form or forms prescribed and furnished by the department. Such application for certificate of title shall be filed within twenty days after the delivery to him of the watercraft or outboard motor.
(c) Upon request of the owner or transferee, a lienholder in possession of the certificate of title shall, unless the transfer was a breach of his security agreement, either deliver the certificate to the transferee for delivery to the department, or mail or deliver it directly to the department. The delivery of the certificate does not affect the rights of the lienholder under his security agreement.
(d) If a lien or encumbrance is first created at the time of transfer of ownership, the certificate shall be retained by or delivered to the person who becomes the lienholder.
Section 50-23-130. (a) If the ownership of a watercraft or outboard motor is transferred by operation of law, such as by inheritance, devise or bequest, order in bankruptcy, insolvency, replevin, or execution sale, or satisfaction of mechanic's lien, or repossession upon default in performance of the terms of a security agreement, the transferee shall, except as provided in subsection (b), promptly mail or deliver to the department the last certificate of title, if available, or the manufacturer's or importer's certificate, or, if that is not possible, satisfactory proof of the transfer of ownership, and his application for a new certificate of title accompanied by the required fee, and upon the appropriate form or forms prescribed and furnished by the department.
(b) If the ownership of a watercraft or outboard motor is terminated in accordance with the terms of a security agreement by a lienholder named in the certificate of title, the transferee shall promptly mail or deliver to the department the last certificate of title, his application for a new title accompanied by the required fee and upon the form or forms prescribed and furnished by the department, and an affidavit by the lienholder or his authorized representative, setting forth the facts entitling him to possession and ownership of the watercraft or outboard motor, together with a copy of the journal entry, court order or instrument upon which such claim of possession and ownership is founded. If the lienholder cannot produce such proof of ownership, he may submit such evidence as he has with his application to the department, and the department may, if it finds the evidence to be satisfactory proof of ownership, issue a new certificate of title.
(c) If a lienholder succeeds to the interest of an owner in a watercraft or outboard motor by operation of law and holds such watercraft or outboard motor for resale, he need not secure a new certificate of title thereto but, upon transfer to another person, shall promptly mail or deliver to the transferee or to the department the certificate, affidavit and such other documents as the department may require.
Section 50-23-135. (A) A person who comes into possession of an abandoned, junked, adrift, destroyed, or salvaged watercraft or outboard motor shall notify the department in writing of possession within ten days of acquiring possession. No person in possession may acquire any right of ownership or sell a watercraft or outboard motor under this chapter without first obtaining a title. If a security interest has been perfected, the person in possession shall notify the lienholder by certified mail, return receipt requested, giving thirty days for response. The person in possession who lays claim to a watercraft or outboard motor is required to submit an affidavit to the department setting forth the circumstances under which he came into possession of the watercraft or outboard motor and such information as the department requires. An owner who abandons or junks a watercraft or outboard motor, either on the land or waters of the State, shall notify the department immediately in writing and deliver to it any title or, if the title is lost or destroyed, a sworn statement of that fact within ten days of the abandonment. A person in possession of an abandoned or junked watercraft or outboard motor:
(1) whose owner of record has complied with this subsection may make application to the department on forms prescribed by the department for titles and transfer of ownership and after satisfying any security interest, if any, and proof of payment of taxes a title must be issued to the person;
(2) whose owner of record has not complied with this subsection shall contact the owner to get proper titles, duplicate title application, and bills of sale as necessary to transfer ownership after satisfying any security interest. The person in possession shall make application to the department within twenty days with appropriate documents;
(3) whose owner failed to comply with this subsection and cannot be located shall send a certified letter, return receipt requested, to the owner's last known address, and advertise three times, seven days apart, in a newspaper of local circulation in the county where the watercraft or outboard motor was found giving a description including the make, model, length or horsepower, and year. The application for title must be accompanied by the newspaper certification of the advertisement and the dates printed, copies of the advertisement, and certified letter;
(4) who does not desire to sell or obtain ownership may forfeit the watercraft or outboard motor to the department which may sell it at any department public auction or destroy it after every reasonable effort to locate the owner.
(B) A person finding a watercraft or outboard motor submerged, a watercraft, or watercraft with an outboard motor that is adrift on the waters of the State or one that has drifted onto land, and salvages the watercraft or outboard motor from the waters of the State, shall comply with subsection (A) to determine the owner giving the serial number, make, year, model, length or horsepower, or hull identification number, serial number, or registration number.
(1) If the owner of record is located, the person in possession of the watercraft or outboard motor shall notify the owner by certified mail, return receipt requested, advising of the reasonable cost of securing, storage, or salvage, and the time limit for response from the date received or presented. Any person who secures, stores, or salvages a watercraft or outboard motor shall acquire a lien against the watercraft or outboard motor senior to an existing lienholder. However, this does not apply to the department for a violation of this chapter. If the owner does not respond, the person in possession may apply for a duplicate title on a form provided by the department with his lien shown and advertise the watercraft or outboard motor for sale at public auction three times, seven days apart, in a paper of local circulation giving the make, year, model, length, or horsepower. The seller shall deduct his reasonable expenses and, after the satisfaction of any other lien, pay any proceeds to the owner upon application.
(2) If the person in possession of the watercraft or outboard motor desires the watercraft or outboard motor for personal use he shall notify the owner of record and all lienholders by certified mail, return receipt requested, with a time of response of thirty days from receipt of the letter. If the owner does not respond, the person in possession may make application on a form prescribed by the department. A title obtained pursuant to this subparagraph is subject to any lien of record previously listed on the watercraft or motor.
(C) A person in possession of an abandoned, junked, drifted, or salvaged watercraft or outboard motor who fails to comply with this section is guilty of a misdemeanor and subject to penalties prescribed by Section 50-23-280(a).
Section 50-23-140. (a) All liens, mortgages and encumbrances noted upon a certificate of title take priority according to the order of time in which they are noted thereon by the department. All such liens, mortgages, and encumbrances shall be valid as against the creditors of the owner of a watercraft or outboard motor, whether armed with process or not, and against subsequent purchasers of any such watercraft or outboard motor, or against holders of subsequent liens, mortgages or encumbrances upon such watercraft or outboard motor.
(b) When a lien is discharged, the holder shall note that fact on the face of the certificate of title over his notarized signature. Prior to delivering the certificate to the owner, the holder shall present it to the department for the purpose of having the department note the cancellation of his lien on the face of the certificate of title and upon the titling records of the department.
(c) A security interest is perfected by the delivery to the department of the existing certificate of title, if any, an application for a certificate of title containing the name and address of the lienholder and the date of his security agreement, and the required fee. It is perfected as of the time of its creation if the delivery is completed within twenty days of its creation, otherwise, as of the time of the delivery.
Section 50-23-150. (a) If a certificate of title is lost, stolen, mutilated or destroyed or becomes illegible, the first lienholder or, if none, the owner or legal representative of the owner named in the certificate, as shown by the records of the department, may obtain a duplicate by application to the department, furnishing such information concerning the original certificate and the circumstances of its loss, mutilation or destruction as may be required by the department.
(b) The duplicate certificate of title shall be a certified copy plainly marked `duplicate' across its face. It shall be mailed to the first lienholder named in it or, if none, to the owner.
(c) In case an original certificate of title is mutilated or rendered illegible, such mutilated or illegible certificate shall be returned to the department with the application for a duplicate.
(d) In the event a lost or stolen original certificate of title for which a duplicate has been issued is recovered, it shall be surrendered promptly to the department for cancellation.
Section 50-23-160. When a watercraft or outboard motor covered by a certificate of title is scrapped, dismantled, destroyed or changed in such manner that it loses its character as a watercraft or outboard motor, or changed in such manner that it is not the watercraft or outboard motor described in the certificate of title, whoever is named as owner in the last certificate of title shall promptly cause the certificate to be mailed or delivered to the department. Thereupon the department shall, with the consent of any lienholders noted on the certificate, cancel the certificate.
Section 50-23-170. (a) If a watercraft contains a permanent identification number placed on it by the manufacturer, the manufacturer's serial number must be used as the builder's hull number. If there is no manufacturer's serial number, or if the manufacturer's serial number has been removed or obliterated, or if the watercraft is homemade, the department, upon application, shall assign a permanent identification number which must be used as the builder's hull number for the watercraft, and this assigned number must be affixed permanently to or imprinted by the applicant, at the place and in the manner designated by the department, upon the watercraft for which the builder's hull number is assigned. `Homemade watercraft or outboard motor' means any watercraft or outboard motor which is built by an individual for personal use from raw materials which does not require the assignment of a federal hull identification number or serial number by a manufacturer pursuant to federal law. An individual may build or furnish raw materials to a builder under a contract to build a homemade watercraft or outboard motor to desired specifications. A copy of the contract, specifications, and bill of sale for raw materials must accompany registration and title application. The person furnishing materials under a contract may be considered the builder. A rebuilt or reconstituted watercraft or outboard motor in no event may be construed to be homemade. Every homemade watercraft must be certified as meeting safety standards of the United States Coast Guard before it can be sold by the builder. Certification must be furnished to the purchaser and a copy accompany applications for transfer to the department.
(b) Every outboard motor must have a permanent identification number placed on it in at least two locations by the manufacturer. This number must be used as the serial number. If there is no manufacturer's serial number, or if the manufacturer's serial number has been removed for a valid reason or obliterated, the department, upon a prescribed application, may assign a serial number for the outboard motor, and this assigned serial number must be affixed permanently to or imprinted by the applicant, at the place and in the manner designated by the department, upon the outboard motor for which such serial number is assigned.
(c) No newly manufactured watercraft or outboard motor may be sold or offered for sale by any person in this State unless the watercraft or outboard motor has a hull identification number or serial number permanently affixed and the number also must be affixed permanently in a hidden place.
(d) Manufacturer's serial numbers for watercraft must be clearly imprinted in the stern transom knee or other essential hull member near the stern by stamping, impressing, or marking with pressure, or in the case of inboard watercraft on the main inside beam. In lieu of imprinting, the manufacturer's serial number may be displayed on a plate in a permanent manner. In addition to being permanent, the number must be accessible. If the serial number is displayed in a location other than on or near the stern transom, the department must be notified by the manufacturer as to the location.
(e) No person may destroy, remove, alter, cover, or deface the manufacturer's serial number, or plate bearing such serial number, or any serial number assigned by the department, on any watercraft or outboard motor unless authorized in writing by the department.
Section 50-23-180. (a) Every peace officer of this State, having knowledge of a stolen or converted watercraft or outboard motor, shall immediately furnish the department with full information concerning such theft or conversion.
(b) The department, whenever it receives a report of the theft or conversion of a watercraft or outboard motor, shall make a record thereof, including the make of the stolen or converted watercraft or outboard motor and its manufacturer's or assigned serial number, and shall file the same in the numerical order of the manufacturer's or assigned serial number with the index records of the watercraft or outboard motors of such make. The department shall prepare a report listing watercraft and outboard motors stolen and recovered as disclosed by the reports submitted to it, to be distributed as it deems advisable.
(c) In the event of the recovery of a stolen or converted watercraft or outboard motor, the owner shall immediately notify the department, who shall remove the record of the theft or conversion from its file.
Section 50-23-185. Any law enforcement officer may inspect a junkyard, scrap metal processing facility, salvage yard, marina, repair shop, boat yard, dry dock, licensed business buying, selling, displaying, trading watercraft or outboard motors, new and used or parts of watercraft and outboard motors, or both, parking lots, and public garages or any other person dealing with salvaged watercraft or outboard motors or parts of them.
The physical inspection must be conducted while an employee or owner is present and must be for the purpose of locating stolen watercraft or outboard motors, investigating the titling or registration of watercraft or outboard motors wrecked or dismantled.
Section 50-23-190. No person may:
(a) operate in this State a watercraft, or an outboard motor, for which a certificate of title is required unless a certificate of title has been issued to the owner;
(b) operate in this State a watercraft, or an outboard motor, for which a certificate of title is required upon which the certificate of title has been canceled;
(c) sell, transfer, or otherwise dispose of a watercraft, or an outboard motor, without delivering to the purchaser or transferee a certificate of title, or a manufacturer's or importer's certificate, assigned to the purchaser or transferee as required by this chapter; or
(d) fail to surrender to the department a certificate of title upon cancellation of the title by the department for a valid reason set forth in this chapter or regulations adopted pursuant to it;
(e) dispose of a rejected or defective watercraft hull or outboard motor in the manufacturing process except by upgrading the hull to meet United States Coast Guard requirements or destroying the hull or outboard motor.
Section 50-23-200. No person shall:
(a) Alter, forge or counterfeit any certificate of title or manufacturer's or importer's certificate to a watercraft, or to an outboard motor;
(b) Alter or falsify an assignment of a certificate of title, or an assignment or cancellation of a security interest on a certificate of title to a watercraft, or to an outboard motor;
(c) Hold or use a certificate of title to a watercraft, or to an outboard motor, nor hold or use any assignment or cancellation of a security interest on a certificate of title to a watercraft, or to an outboard motor, knowing it to have been altered, forged, counterfeited or falsified;
(d) Use a false or fictitious name or address, or make any material false statement, or conceal any material fact, in an application for a certificate of title, or in a bill of sale or sworn statement of ownership;
(e) Have possession of, buy, receive, sell or offer for sale, or otherwise dispose of a watercraft, or an outboard motor, knowing or having reason to believe that the watercraft or outboard motor has been stolen; and no person may procure or attempt to procure a certificate of title to a watercraft, or an outboard motor, or pass or attempt to pass a certificate of title or any assignment to a watercraft, or an outboard motor, knowing or having reason to believe that the watercraft, or the outboard motor has been stolen;
(f) Have possession of, buy, receive, sell or offer for sale, or otherwise dispose of in this State a watercraft, or an outboard motor, on which a manufacturer's or assigned serial number has been destroyed, removed, covered, altered, or defaced, knowing or having reason to believe of the destruction, removal, covering, alteration, or defacement of the manufacturer's or assigned serial number; or
(g) Destroy, remove, cover, alter or deface the manufacturer's or assigned serial number on any watercraft, or on any outboard or inboard motor.
Section 50-23-205. A stolen or abandoned, junked, adrift, destroyed, or salvaged watercraft or outboard motor, a watercraft or outboard motor for which the true owner may not be determined, or a watercraft or outboard motor on which the manufacturer's or assigned serial number has been destroyed, removed, covered, altered, or defaced may be seized.
Upon seizure of the watercraft or outboard motor, the department shall notify a person claiming an interest in it, and the person has the right to prove his interest before the circuit court in the county where the property was located. If no action is filed within sixty days of notification, the department may retain the property for official use or transfer the property to another public entity for official use, sell the property at public auction or, in the event that the watercraft or outboard motor is determined to be unsafe, destroy it. The proceeds derived from the sale must be deposited in the Boating Operating Fund of the department for administration of the program.
Section 50-23-210. (a) The department shall have the authority to suspend or revoke a certificate of title to a watercraft, or to an outboard motor, upon reasonable notice and hearing, when authorized by any other provision of law or if he finds:
(1) The certificate of title was fraudulently procured or erroneously issued, or
(2) The watercraft, or outboard motor, has been scrapped, dismantled, or destroyed, or transferred and registered in another state.
(b) Suspension or revocation of a certificate of title does not, in itself, affect the validity of a security interest noted on it;
(c) When the department suspends or revokes a certificate of title, the owner or person in possession of it shall, immediately upon receiving notice of the suspension or revocation, mail or deliver the certificate to the department; or
(d) The department may seize and impound any certificate of title which has been suspended and revoked.
Section 50-23-220. All fees received and money collected under the provisions of this chapter must be deposited in the State Treasury and set apart in a special fund. Appropriations from this fund must be used for the expenses of the department in administering the provisions of this chapter or for any purpose related to the mission of the department.
Section 50-23-230. The department is authorized and empowered to make, adopt, promulgate, amend, and repeal all rules and regulations necessary, or convenient for the carrying out of the duties and obligations and powers conferred on the department by this chapter.
Section 50-23-240. A copy of the regulations adopted pursuant to this chapter, and of any amendments thereto, shall be filed in the office of the board and in the office of the official State record-keeping agency. Rules and regulations shall be published by the department in a convenient form.
Section 50-23-250. The director, for the purpose of more effectively carrying out the provisions of this chapter, shall have the power to employ and appoint the necessary enforcement officers for enforcement of this chapter. The duties of such enforcement officers shall include but not be limited to investigating applications for certificate of title, inspecting watercraft, or outboard motors, in or at public facilities for purposes of locating stolen property, and investigating and reporting thefts of watercraft, or outboard motors. With respect to the enforcement of the provisions of this chapter, such enforcement officers shall have and may exercise throughout this State all of the powers of peace officers.
Section 50-23-260. The department shall annually, between January first and January thirty-first, furnish to each county auditor a list of motors and watercraft registered and titled pursuant to this chapter in the previous year to residents of such auditor's county, which list shall include the names and addresses of the owners of such watercraft and motors and sufficient additional information as will permit the auditors to identify the chattels titled for tax purposes.
Section 50-23-270. A sale, purchase, or transfer of a vessel or outboard motor is subject to the provisions of this chapter. All other owners are required to obtain title certificates at the time their vessel registration becomes due for renewal or execute an affidavit properly notarized that he is the true owner of the vessel or outboard motor. Any person making a false statement in the affidavit is guilty of a misdemeanor and, upon conviction, must be fined not less than one hundred dollars nor more than two hundred dollars or imprisoned for not more than thirty days.
Section 50-23-275. A watercraft not previously required to be titled for which a title is required by this chapter must be titled at the time of renewal of the registration of the watercraft or transfer of the watercraft whichever occurs first. An owner of such a watercraft must secure a title for the watercraft within three years from the effective date of this section.
Section 50-23-280. (a) A person violating the provisions of this chapter is guilty of a misdemeanor and, upon conviction, must be fined not less than fifty dollars nor more than two hundred dollars or imprisoned for not less than ten days nor more than thirty days.
(b) A person convicted of violating Section 50-23-200 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 less than thirty days nor more than one year, or both.
Section 50-23-290. (A) If an applicant for a watercraft title or outboard motor title is not able to produce a perfected chain of title from the last owner of record or from the manufacturer, the department may issue to the applicant a conditional title which reflects on the face of it that it is conditional and that it does not warrant ownership against the true owner. The conditional title may not be issued unless the department:
(1) determines that the watercraft or outboard motor has not been reported as stolen in this State as required by this chapter or in another state;
(2) determines that no active liens exist on the watercraft or outboard motor or that the existence of liens is unlikely; and
(3) determines that the last titled owner cannot be found or the probability of finding the owner is remote; or
(4) determines that the necessary paperwork to perfect the title has been lost, stolen, or destroyed and reasonably cannot be found or duplicated.
(B) The applicant shall cause to be published in a newspaper of general circulation in the county where the last titled owner of the watercraft or outboard motor is known to have lived a notice in the following form:
A. TO: (Name of last titled owner) and all persons claiming an interest in (description including make, model, year, horsepower, and hull identification or serial number if available). Please take notice that (Name of applicant) shall apply to the South Carolina Department of Natural Resources for a title to that certain (watercraft or outboard motor) described as follows: (Description including make, model, horsepower, year, and hull identification or serial number if available) no later than ten (10) days from the last publication of this notice. This is the (first, second, or third) of three notices to be published weekly for three weeks. If you wish to claim an interest in this (watercraft/outboard motor) you are advised to contact the South Carolina Department of Natural Resources immediately.
B. If there is no record of a previous titled owner or he cannot be determined the notice may be addressed to all persons claiming an interest in the watercraft or outboard motor and published in the county of the applicant's residence for the prescribed period.
C. Upon receipt of proof of publication (Certification from newspaper with copy of advertisement and dates) and having received no claims from interested parties upon determination of the department that the above conditions exist, the department may issue a conditional title to the watercraft or outboard motor upon receipt of payment of appropriate taxes, fees, and application.
D. The conditional nature of the title must be reflected clearly on the face of the title and upon any subsequent titles issued on the watercraft or outboard motor for seven years.
E. A person claiming an interest in the watercraft or outboard motor may bring an action within seven years to set the conditional title aside and for the return of the watercraft or outboard motor. Seven years after issuance of the conditional title it is incontestable and a new nonconditional title may be issued upon application and payment of the appropriate fee."
Names revised
SECTION 1271. Chapter 25, Title 50 of the 1976 Code is amended to read:
"CHAPTER 25
Boating and Surfing at particular Localities
Article 1
Boats on Bath Lake
Section 50-25-10. Except on and during legal holidays, the operation and driving of motorboats upon the waters of Bath Lake in Aiken County by any method or means whereby disturbing, excessive and useless noises are produced by such operation is declared a public nuisance and is hereby forbidden. Any person who shall violate the provisions hereof shall be guilty of a misdemeanor and upon conviction shall be punished by a fine of not less than twenty-five dollars and not more than fifty dollars or imprisonment for a period not exceeding thirty days. All fines imposed and collected under the provisions hereof shall be paid to the treasurer of Aiken County and by him credited to the school funds of the school district in which Bath Lake is situated.
Article 3
Motorboats at Certain Beaches in Beaufort County
Section 50-25-110. It is unlawful for any person to operate any boat propelled at the time by an inboard or outboard motor at Brighton Beach on May River in Beaufort County, between the low and high tide water marks and between the docks of J. E. Smith on the east and the docks of C. Ray Carter on the west. It is declared that the operation of such craft in the area referred to constitutes an undue hazard to persons using the area on this beach for bathing and swimming. The supervisor of Beaufort County shall place at each end of this area an appropriate sign designating it as a bathing area only. It is made the special duty of the sheriff of Beaufort County and his deputies to see that the provisions of this section are observed and enforced. Any violation of the provisions of this section is declared to be a misdemeanor and, upon conviction, the offender shall be fined not exceeding one hundred dollars or be imprisoned for a term not exceeding thirty days.
Section 50-25-120. It is unlawful for any person to operate a boat propelled at the time by an inboard or outboard motor between the low and high tide water marks and within two hundred feet east or west of a dock owned by George Bailey at Bailey's Beach on the north side of the Colleton River in Beaufort County. It is declared that the operation of such craft in the area referred to constitutes an undue hazard to persons using the area on this beach for bathing and swimming. Any violation of the provisions of this section is declared to be a misdemeanor and, upon conviction, the offender shall be fined not exceeding one hundred dollars or be imprisoned for a term not exceeding thirty days.
Article 4
Operation of Motorboats on Louther's Lake
Section 50-25-150. It shall be unlawful for anyone to operate a motorboat on Louther's Lake near the Town of Mechanicsville in Darlington County when the boat has onboard a motor which has a manufacturer's advertised horsepower greater than ten. It shall be the responsibility of the department to post and maintain at each major landing on Louther's Lake a three foot by four foot sign, visible to users of the landings, on which the foregoing prohibition shall be plainly lettered. Anyone operating a boat in violation of the provisions of this section shall be fined not less than fifty dollars nor more than one hundred dollars, or be imprisoned for not more than thirty days.
Article 5
Surfing on Certain Beaches in Horry County
Section 50-25-210. It shall be unlawful for any person to use a surfboard or similar device used as a surfboard from May fifteenth until Labor Day on the beaches of the unincorporated community of Garden City in Horry County between 9:00 a.m. and 6:00 p.m. except in the area from Holliday Drive south for a distance of six hundred ninety feet to a ten-foot alley or to engage in surfing at any time within three hundred feet of any fishing pier. The county sheriff shall arrange for the posting of signs to designate both the prohibited and permitted areas for surfing and the date and time limitations prescribed in this section. Any person who violates the provisions of this section is guilty of a misdemeanor and upon conviction shall be fined not more than one hundred dollars or imprisoned not more than thirty days.
Article 7
Boating Near Duke Power Company Wateree Dam
in Kershaw County
Section 50-25-310. It shall be unlawful for anyone to enter in a boat or any other boating device within the watercourse below the Duke Power Company Wateree Dam in Kershaw County for a distance of two hundred feet. The department shall place appropriate signs or markers on each side of the watercourse indicating the zoned area for boats. Anyone violating the provisions of this section shall be fined not less than twenty-five dollars nor more than one hundred dollars or imprisoned for not more than thirty days, or both.
Section 50-25-320. It shall be unlawful for anyone to enter in a boat or any other boating device within the watercourse above the Duke Power Company Wateree Dam in Kershaw County for a distance of one hundred feet. The department shall place appropriate signs or markers on each side of the watercourse indicating the zoned area for boats. Nothing in this section or Section 50-19-1820 shall be construed to prohibit fishing in waters within one hundred feet of the dam from a boat which is further than one hundred feet from the dam. Anyone violating the provisions of this section shall be fined not less than twenty-five dollars nor more than one hundred dollars or imprisoned for not more than thirty days.
Article 9
Motorboats on Langley Lake
Section 50-25-410. The operation of motorboats upon the waters of Langley Lake in Aiken County with exhausts, mufflers or cutouts open or by any other method or means whereby disturbing, excessive and useless noises are produced by such operation is declared a public nuisance and is hereby forbidden except on legal holidays. Any person who violates the provisions of this section shall be guilty of a misdemeanor and upon conviction shall be fined not more than one hundred dollars or be imprisoned for not exceeding thirty days. All fines collected under the provisions of this section shall be paid to the treasurer of Aiken County who shall deposit such funds to the credit of the school district in which Langley Lake is situated.
Article 11
Motorboats on Lake Wylie
Section 50-25-1110. Any motorboat operating upon waters on Lake Wylie shall comply with the following noise control requirements:
(1) Motorboats with inboard-outboard propulsion machinery shall exhaust through the propeller.
(2) Inboard motorboats with `V'--drives--jets or propeller propulsion machinery with exhaust through the transom shall be water cooled with a steady stream of water or exhaust underwater while under way or exhaust through an automotive type sealed (baffle) muffler for each exhaust stack, with exhaust openings not to exceed two inches in diameter. Boats with original propulsion machinery made before 1970 are exempt from the requirements of this item.
(3) Motorboats and their propulsion machinery which exhaust over the transom shall exhaust through an automotive sealed (baffle) type muffler for each exhaust stack, with exhaust openings not to exceed two inches in diameter. Glass pack mufflers, resonators and above water open exhausts are prohibited for such motorboats. Baffle inserts are prohibited on all inboard boats.
(4) Motorboats with outboard propulsion machinery shall exhaust under water at all times unless designed or modified to exhaust above water and comply with the provisions of item (3) of this section.
Section 50-25-1120. The motorboats competing in a regatta, boat race, marine parade, tournament or exhibition approved as provided in Section 50-21-1010 shall be exempted from the provisions of this article. Exceptions may also be granted during designated hours for pretrial runs and for trial runs for speed records immediately following the event.
Section 50-25-1130. The operator of any motorboat who violates any of the provisions of this article is guilty of a misdemeanor and upon conviction shall be fined for a first offense not less than fifty-dollars nor more than two hundred dollars or imprisoned for not more than thirty days. For a conviction of a second offense the punishment shall be by a fine of not less than one hundred dollars nor more than two hundred or by imprisonment for not more than thirty days. For the conviction of third or subsequent offense the punishment shall be by a fine of not less than two hundred dollars nor more than five hundred dollars or by imprisonment for not more than six months or both such fine and imprisonment.
Article 13
Restrictions Applicable to Lakes William C. Bowen and
H. Taylor Blalock in Spartanburg County
Section 50-25-1310. On Lakes William C. Bowen and H. Taylor Blalock in Spartanburg County:
(1) There is established a no wake zone within three hundred feet of all bridges and public docks. No wake zones must be clearly marked with signs. The signs must be designed and installed by the department.
(2) No watercraft of any type may be operated within five hundred feet of any pump station, water intake of a dam, or spillways. These restricted areas must be clearly marked with signs. Signs must be designed and installed by the department.
(3) No watercraft may operate or anchor within one hundred fifty feet of public fishing piers.
(4) No sailing craft with a mast height in excess of thirty feet is permitted to operate.
(5) No wading, bathing, or swimming is permitted within two hundred feet of any public landing, bridge, or restricted area. These restricted areas must be clearly marked with signs. The signs must be designed and installed by the department.
(6) The lake wardens, at their discretion, may limit entrance of watercraft onto the lakes via the public landings when conditions such as overcrowding or adverse weather create an unsafe boating environment.
Section 50-25-1320. On Lake William C. Bowen:
(1) No watercraft with an outboard motor having a horsepower rating in excess of one hundred fifteen horsepower is permitted.
(2) No watercraft with an outboard motor in excess of the United States Coast Guard rating, with Coast Guard rating plate missing or changed, is permitted.
(3) No watercraft powered by an outdrive or inboard motor having an engine automotive horsepower rating in excess of one hundred eighty horsepower is permitted. This restriction does not apply to towboats which have been approved by the American Waterski Association.
(4) There is no minimum or maximum restriction on length of watercraft.
Section 50-25-1330. On Lake H. Taylor Blalock, no watercraft with an engine greater than fifteen horsepower may operate unless:
(1) the gas line has been disconnected and the engine or prop is trimmed out of water, and
(2) an electric trolling motor or engine of fifteen horsepower or less is mounted, but pontoon boats with a length greater than sixteen feet may utilize motors not greater than thirty-five horsepower.
Section 50-25-1340. On Lake H. Taylor Blalock, it is unlawful to waterski or tow rafts, discs, or any other similar floating devices.
Section 50-25-1350. On Lake William C. Bowen it is unlawful to:
(1) waterski or tow rafts, discs, or other similar floating devices within three hundred feet of any bridge or within one hundred feet of public dock facilities of the Spartanburg Water System;
(2) waterski and tow rafts, discs, or other similar floating devices upstream and west of the Interstate Highway 26 bridge which crosses over Lake William C. Bowen;
(3) pull more than two skiers at one time from any boat or to waterski while carrying one or more persons piggyback;
(4) operate a watercraft between midnight and one hour before sunrise.
Section 50-25-1360. The department, after consultation with the Spartanburg Water System, by special permit,may waive the restrictions and provisions of Sections 50-25-1310 through 50-25-1350 to allow for boat testing, water and ski shows, and similar activities. It is unlawful to violate the terms and conditions of the permit.
Section 50-25-1370. A person violating a provision of this article is guilty of a misdemeanor and must be punished as provided in Section 50-1-130."
Parks, Recreation and Tourism organization and director
SECTION 1272. Article 1, Chapter 1, Title 51 of the 1976 Code is amended to read:
"Article 1
General Provisions
Section 51-1-10. There is hereby created the Department of Parks, Recreation and Tourism which shall be a body corporate. The department shall be headed by a Director to be appointed by the Governor with the advice and consent of the Senate. The director shall be selected with special reference to his executive ability and experience and shall be vested with the duty and authority to oversee, manage, and control the operation, administration, and organization of the department subject only to the laws of this State and the United States. The director is subject to removal by the Governor as provided in Section 1-3-240(B).
Section 51-1-20. The director shall employ such employees as may be necessary to operate the department commensurate with funds available. The employees, including the deputy directors, shall serve at the pleasure of the director.
Section 51-1-30. The department shall be composed of the Division of Travel and Tourism which shall advertise, promote and encourage travel and tourist industry for the State; a Division of Parks and Recreation which shall develop and promote state parks and provide recreational programs in such areas; and other divisions which may be provided for by the General Assembly. Each division may be headed by a deputy director who shall be knowledgeable, either by training or experience, in the requirements of the division he is to direct.
Section 51-1-40. The department may make a reasonable charge for admission to park and recreational facilities, which funds will be used for park and recreational operations.
Section 51-1-50. Notwithstanding any other provision of law to the contrary, information centers shall be staffed by persons hired and paid by the Department of Parks, Recreation and Tourism.
Section 51-1-60. The department may contract, be contracted with, use a common seal, and make and adopt regulations. No regulation may be promulgated affecting hunting and fishing except as provided in Section 51-3-145. The department may accept gifts and acquire by gift, purchase, or otherwise real estate and other property, but no real estate may be purchased or disposed of by the department except on approval of the State Budget and Control Board. The department shall keep accurate records showing in full the receipts and disbursements and the records must be open at any reasonable time to inspection by the public. The department shall submit annually to the General Assembly and the Budget and Control Board reports the board requires. The department shall have the following duties and responsibilities in addition to such other functions as may, from time to time, be assigned by legislative action or by the State Budget and Control Board:
(a) to promote, publicize and advertise the state's tourist attractions;
(b) to promote the general health and welfare of the people of the State by developing and expanding new and existing recreational areas, including the existing State Park System;
(c) to develop a coordinated plan utilizing to best advantage the natural facilities and resources of the State as a tourist attraction, recognizing that the State has within its boundaries mountainous areas and coastal plains, each of unsurpassed beauty, which with the easy accessibility now existing and being provided, has the potential of attracting many visitors in all seasons to take advantage of the natural scenery, the outdoor sports, including hunting, fishing and swimming, together with other recreational activities such as golfing, boating and sightseeing;
(d) to include in its plan the preservation and perpetuation of our state's rich historical heritage by acquiring and owning, recognizing, marking and publicizing areas, sites, buildings and other landmarks and items of national and statewide historical interest and significance to the history of our State. No area, site, building, or other landmark shall be acquired for its historical significance without the approval of the Commission of Archives and History.
(e) to use all available services of the several agencies in the management of timber and game and such agencies when requested by the director shall render such cooperation and assistance as may be necessary; provided, that the State Forestry Commission shall continue the forestry program authorized under the provisions of Section 48-23-270.
(f) to lease or convey portions of lands under its jurisdiction to municipalities and other political subdivisions charged with the responsibility of providing parks and recreation facilities; provided, that all such leases shall contain a clause to the effect that if such property ceases to be used as a recreation or park facility the lease shall be void and in the event of a conveyance the deed shall contain a clause providing that if such property ceases to be used as a recreation or park facility the title to such property shall revert to the department. All plans for the development of such lands shall be subject to the approval of the department and it shall retain the right to inspect such lands at such times as it considers necessary to determine if such lands are being used for parks and recreation.
(g) to borrow from time to time from any source available such sums of money as the department at its discretion deems advisable at interest rates approved by the Budget and Control Board for the purposes of acquisition, construction, development and maintenance of such lands and facilities as the director is empowered to operate and issue evidences of such indebtedness thereof in the form of notes or bonds as may be determined by the director. The department may secure any sums borrowed under the terms hereof by mortgage of any property or facilities owned by it and it may pledge any and all income from any of its properties or facilities. The State is in no manner liable for any debt incurred under the terms hereof but all such obligations shall be met by the department out of moneys coming into its hands from the property and facilities so pledged;
(h) to enter into contracts with the United States Government, its various departments and agencies for the purpose of obtaining funds, property or any other purpose which will assist the department in carrying out the provisions for which it has been created;
(i) to allocate funds made available to the department, other than funds specifically allocated to it by legislative appropriation or bond authorization, for development and improvement of park properties in the state system and historic sites approved by the Director of the Department of Parks, Recreation and Tourism and the South Carolina Archives and History Commission. The Department of Parks, Recreation and Tourism shall study and ascertain the state's present park, parkway and outdoor recreational resources and facilities, the need for such resources and facilities, and the extent to which these needs are now being met. A survey shall be included to determine the land suitable and desirable to be acquired as a part of the state park and outdoor recreational system, due consideration being given to the scenic, recreational, archaeological, and other special features attractive to out-of-state visitors and to the people of the State. The results of this survey and study should be reported to the Governor and the General Assembly at the earliest practicable time.
Section 51-1-70. All funds allocated to the various state departments for parks, tourism or recreation shall be transferred by the State Budget and Control Board to the Department of Parks, Recreation and Tourism.
Section 51-1-75. (A) The annual revenue derived from Section 12-21-2420 which exceeds four million dollars for fiscal year 1991-92 and five million dollars for fiscal year 1992-93 and after that year, subsequent to the allocation of revenue for use for the commercial fisheries division, must be allocated to the Department of Parks, Recreation and Tourism.
(B) The funds allocated to the Department of Parks, Recreation and Tourism from the revenues collected from admission tax fees in Section 12-21-2420 must be used to advertise and promote the tourism industry of the State. The advertising and promotion activities must include paid media advertising and other promotional projects of the department and establishment by the department of a matching funds program to assist local tourism promotion organizations in the State. Guidelines for the programs must be formulated by the department and the Joint Committee on Tourism and Trade.
Section 51-1-80. The Department of Parks, Recreation and Tourism is authorized to cooperate and enter into certain contracts with political subdivisions of this State.
Section 51-1-90. All powers, duties, assets, liabilities, and properties of the South Carolina Recreation Commission, as created by Act 1037 of 1966, are transferred to the State Department of Parks, Recreation and Tourism to be incorporated into the Department as a separate division thereof. The recreation division shall be assigned such functions and responsibilities as the Director of the Department may prescribe including, but not limited to, those formerly exercised by the South Carolina Recreation Commission."
Reference revised
SECTION 1273. Section 51-1-75(A) of the 1976 Code is amended to read:
"(A) The annual revenue derived from Section 12-21-2420 which exceeds four million dollars for fiscal year 1991-92 and five million dollars for fiscal year 1992-93 and after that year, subsequent to the allocation of revenue for use for the Marine Resources Division of the Department of Natural Resources, must be allocated to the Department of Parks, Recreation and Tourism."
Division of Community Development
SECTION 1274. Chapter 1, Title 51 of the 1976 Code is amended by adding:
"Article 3
Division of Community Development
Section 51-1-300. The Division of Community Development is a Division of Parks, Recreation and Tourism. The administration and management of the division is committed to the deputy director of the division.
Section 51-1-310. The division shall promote economic diversity in all areas of the State by extending to them the full benefits of tourism and recreation development. The division shall coordinate and act as a liaison with regional tourism organizations, local chambers of commerce, development agencies and other federal, state, regional and local agencies and organizations to promote economic and business development, the expansion of tourism, recreation, cultural, retirement, and heritage events. The division shall have such additional duties and responsibilities as may be assigned by the director of the department."
Film Office Division
SECTION 1275. Chapter 1, Title 51 of the 1976 Code is amended by adding:
"Article 5
Film Office Division
Section 51-1-500. All powers, duties, assets, liabilities, records, personnel, unexpended appropriations, and properties of the South Carolina Film Office, as a division of the State Development Board, shall be transferred to the control of the State Department of Parks, Recreation and Tourism to be incorporated into a Film Office Division. The Film Office Division shall be assigned such functions and responsibilities as the director of the department may prescribe including, but not limited to, those formerly exercised by the South Carolina Film Office, as a division of the State Development Board.
Section 51-1-510. (A) The administration and management of the division is committed to the deputy director.
(B) The duties of the division include, but are not limited to:
(1) recruiting and facilitating motion picture production;
(2) recruiting motion picture production and support companies and facilities;
(3) taking steps necessary to foster the economic and cultural development of the indigenous motion picture industry.
(C) In accordance with law, the division may:
(1) control the expenditure of public funds appropriated to the division;
(2) enter into contracts, within the amount made available by appropriation for contracts, with individuals, organizations, and institutions for services furthering the objectives of the division's programs, and with local and regional associations for cooperative endeavors furthering the objectives of the division's programs;
(3) accept gifts, contributions, and bequests of an unrestricted nature from individuals, foundations, corporations, and other organizations and institutions for the purpose of furthering the objectives of the division's programs;
(4) purchase and own real and personal property;
(5) make and sign agreements;
(6) perform acts necessary, desirable, or proper to carry out the duties of the division;
(7) request and receive from any department or agency of the state assistance and data to enable it to carry out its powers and duties;
(8) receive and disburse funds which may be made available by the federal government for programs related to motion picture production and related activities."
References revised
SECTION 1276. Section 51-3-145 of the 1976 Code is amended to read:
"Section 51-3-145. It shall be unlawful for any person to commit any of the following acts at any park or facility under the jurisdiction of the Department of Parks, Recreation and Tourism:
(A) Destroying, defacing, disturbing, disfiguring, or removing any part of any building, sign, structure, or equipment.
(B) Killing, harming, or harassing any mammal, bird, reptile, or amphibian, except by permit issued by the department or by permit issued by the South Carolina Department of Natural Resources for designated Game Management Areas.
(C) Hunting in any area, with the exception of those that may be designated as Game Management Areas.
(D) Destroying, cutting, breaking, removing, defacing, mutilating, injury, taking or gathering any tree, shrub, other plant or plant part, rock, mineral, or geological feature except by permit issued by the department.
(E) Building any fire in any place other than those specifically designated for such a purpose.
(F) Disposing of litter, garbage, or other refuse in places or receptacles other than those specifically provided for such purpose. Such unlawful disposing of litter, garbage, or refuse shall include:
(1) Dumping any refuse or waste from any trailer or other vehicle except in places or receptacles provided for such use.
(2) Cleaning fish, or food, or washing clothing, or articles for household use in any sink, or at any faucet located in restrooms.
(3) Polluting or contaminating any water used for human consumption.
(4) Using park refuse containers or facilities for dumping household or commercial garbage or trash brought as such from private property.
(5) Depositing, except into receptacles provided for that purpose, any body waste, or depositing any bottles, cans, clothes, rags, metal, wood, stone, or other damaging substance in any fixture in any restroom, or other structure.
(G) Possessing any firearm, airgun, explosive, or firework except by duly authorized park personnel, law enforcement officers, or persons using areas specifically designated by the department for use of firearms, airguns, fireworks, or explosives. Licensed hunters may have firearms in their possession during hunting seasons provided that such firearms are unloaded and carried in a case or the trunk of a vehicle except that in designated Game Management areas where hunting is permitted, licensed hunters may use firearms for hunting in the manner authorized by law.
(H) Operating vehicles in a reckless manner, or in excess of posted speed limits, or in areas other than those specifically intended for vehicular traffic. A violation of the following provisions shall constitute the unlawful operating of vehicles:
(1) Motorbikes, minibikes, mopeds, motorcycles, motor scooters, go-carts and any other type motorized vehicle shall not be driven in any area or on any trail not intended for their use. Only licensed motorized vehicles shall be allowed on park roads.
(2) No motorized vehicle of any kind shall be allowed on horse trails, hiking trails or beach areas.
(3) Motor vehicles shall not be driven on roads in developed recreation sites for any purpose other than access into or egress out of the site.
(4) No motorized vehicle of any kind shall be operated at any time without a muffler in good working order, or in such a manner as to create excessive or unusual noise, or annoying smoke, or using a muffler cut-off, by-pass, or similar device.
(5) No person shall excessively accelerate the engine of a motor vehicle or motorcycle when such vehicle is not moving or is approaching or leaving a stopping place.
(6) Vehicles shall not be permitted in a cabin or camping area unless the operator thereof is a registered guest within the area, except for the expressed intent of renting such area or with prior permission of authorized park officials.
(I) Using privately owned boats or gasoline motors on any waters lying wholly within the boundaries of the park or facility, except in water where specifically authorized, and in such case boat users shall obey all posted rules and regulations.
(J) Consuming or displaying in public any beverage of alcoholic content, including beer and wine, except where specifically authorized by the department.
(K) Acting in a disorderly manner or creating any noise which would result in annoyance to others. Acting in a disorderly manner shall include inciting or participating in riots, or indulging in boisterous, abusive, threatening, indecent, or disorderly conduct. In addition to other authorized penalty provisions anyone in violation of this subsection may be ejected from the park and shall not be entitled to a refund of any fee or rental.
(L) Entering or remaining within the limits of the park or facility while in an intoxicated or drugged condition.
(M) Operating or using audio device, including radio, television, musical instruments, or any other noise producing devices, such as electrical generators, and equipment driven by motor engines, in such a manner and at such times as to disturb other persons and no person shall operate or use any public address system, whether fixed, portable, or vehicle mounted, except when such use or operation has been approved by the department.
(N) Engaging in or soliciting business within a park or facility except where authorized by the department and no person shall distribute, post, place, or erect any bills, notices, paper, or advertising device, or matter of any kind without consent of the department.
(O) Swimming in areas not designated for the purpose and failing to obey all posted rules while swimming.
(P) Bringing a dog or any other animal into the park or facility unless it is crated, caged, or upon a leash not longer than six feet or otherwise under physically restrictive control at all times. For this purpose:
(1) No person shall keep in the park or retain in the park a noisy, vicious, or dangerous dog or animal, or one which is disturbing to other persons after he has been asked by a park official to remove such animal.
(2) No person shall bring saddle, pack, or draft animals into a site which has not been developed to accommodate them.
(Q) Entering a facility or area without regard to restrictions on public use. These restrictions on public use shall include the following provisions and a violation of such provisions shall be considered to be a violation of this subsection:
(1) Parks shall be open during daylight hours except where otherwise specifically authorized and no person shall be admitted to or allowed to remain in the park after the designated closing hour except for the purpose of cabin rentals or camping unless such person has permission of the department.
(2) No person shall make, use, or gain admittance to, or attempt to use, or gain admittance to facilities within any park, for which a charge is made, without paying the fee.
(3) No person shall remain within any facility if he refuses to pay the required fee to enter and use the facility or service in a posted, designated fee area.
(4) No person shall enter any park, or any park area, or facility when it is closed to the public.
(5) No person shall willfully provide erroneous information for any campsite or cabin registration.
(6) Minors under eighteen years of age shall register for a cabin or campsite only as agents acting for their parent or guardian.
(7) No person or persons shall occupy a campsite for a consecutive period longer than fourteen days without permission from the department.
(8) No person or persons shall occupy a cabin or lodge room for a consecutive period longer than seven days without permission from the department.
(R) No person shall take fish from a lake, pond, or other waters wholly located within the boundary of a state park except in accordance with methods, limits, and times permitted by the department. The methods, limits, and times must be published and displayed in a conspicuous manner to provide notice to the visiting public. The articles and acts prohibited by this section shall be published and displayed in conspicuous places so as to be available for visitors and employees."
Reference revised
SECTION 1277. Section 51-3-160 of the 1976 Code is amended to read:
"Section 51-3-160. The Department of Corrections and the Department of Natural Resources are hereby authorized to cooperate in the development of public recreation facilities and to exchange funds where mutually beneficial to both departments and accept matching federal funds."
Organization of Recreation Land Trust Fund revised
SECTION 1278. Chapter 11 of Title 51 of the 1976 Code is amended to read:
"CHAPTER 11
Recreation Land Trust Fund
Section 51-11-10. There is hereby created the Recreation Land Trust Fund, hereafter referred to as the trust fund, which shall be kept separate from any other funds of the State. The trust fund shall be under the control of and administered by the Director of the Department of Parks, Recreation and Tourism for the purposes of acquiring recreational lands, the development of utilities and roads on lands owned or controlled by the department, and for such related professional and technical services, legal fees, court costs or such other costs as may be involved in the acquisition and development of such lands. The State Treasurer shall be the custodian of the fund, and all moneys and securities in the fund shall be held in trust by the State Treasurer.
Section 51-11-15. The Director of the Department of Parks, Recreation and Tourism may make grants to local governments from the Recreation Land Trust Fund for the acquisition of recreational lands in accordance with guidelines to be promulgated by the department.
Section 51-11-20. No funds provided for in this chapter shall be expended to acquire property by eminent domain nor shall such funds be expended for any property without the approval of the State Budget and Control Board. The moneys in the trust fund shall be carried forward each year and used only for the purposes provided for in this chapter.
Section 51-11-30. The State Treasurer shall transfer to the Department of Parks, Recreation and Tourism that portion of the former Tricentennial Fund consisting of nine hundred eighty-two thousand, seven dollars and fifty cents recovered in litigation as a result of defects in certain buildings owned by the former Tricentennial Commission. Five hundred thousand dollars of such moneys shall be deposited in the trust fund and the balance shall be used by the department for capital improvements as it sees fit.
Section 51-11-40. The department shall file a copy of its South Carolina Outdoor Recreation Plan of 1970 with the Secretary of State. The plan, and amendments thereto, and such formulas and priorities promulgated by the department for the purpose of administering it, shall serve as a guide for the expenditure of these funds.
Section 51-11-50. No funds provided for in this chapter shall be expended without prior approval of the State Budget and Control Board.
Section 51-11-60. The Department of Parks, Recreation and Tourism shall report by letter to the General Assembly not later than January fifteenth of each year all funds expended pursuant to this chapter for the previous year, including the amount of such funds expended and the uses to which such expenditures were applied."
References revised
SECTION 1279. Section 51-15-540 of the 1976 Code is amended to read:
"Section 51-15-540. For tax purposes these properties, whether owned by the municipality or by a corporation created by the municipality, shall be considered just as other municipal property.
References revised
SECTION 1280. Section 51-17-10 of the 1976 Code is amended to read:
"Section 51-17-10. The following words or phrases have the definition given unless clearly specified otherwise:
1. `Department' means the Department of Natural Resources.
2. `Board' means the Heritage Trust Advisory Board.
3. `Natural area' means an area of land or water, or a combination thereof, generally, but not necessarily, large in size. Such an area may be in public or private ownership and shall contain relatively undisturbed ecosystems, landforms, threatened, endangered, or unique plant life, or animal habitats, or other unusual, or outstanding scientific, educational, aesthetic, or recreational characteristics.
4. `Natural feature' means an area of land or water, or a combination thereof, which is generally, but not necessarily, small in size. Such area may be in public or private ownership and shall contain or consist of outstanding remnants or natural elements of surviving undisturbed natural ecosystems such as record size individual species of plant life, nests or rookeries, geological formations, or objects of special scientific, educational, aesthetic, or recreational character.
5. `Cultural area or feature' means an area or feature which provides an outstanding example of our historical or archeological heritage. Such an area or feature shall be a site of special historic interest or contain outstanding remnants or elements of the way of life and significant events of our past so that through their preservation and the restoration of related existing structures, or the development of a historic area, as well as through study, investigation and examination of the material remains in that life, a record may be preserved of the interrelationship and effect between man's activities and his surrounding environment. A cultural area or feature may be one that is either publicly or privately owned.
6. `Heritage Preserve' means a natural or cultural area or feature which is "dedicated" under this chapter.
7. `Heritage Site' means a natural or cultural feature which has been recognized as such through `registration' under this chapter.
8. `Dedicate or dedication' means the process by which any natural or cultural area or feature shall be established as a Heritage Preserve in accordance with the procedures set out in S 51-17-80. Dedication may result from either of the following methods, but no power of eminent domain is hereby conferred or granted to the commission, advisory board, or the department under this chapter:
(a) `Acquisition' means the establishment of a Heritage Preserve whereby the owner of a natural or cultural area or feature transfers the fee simple interest therein to the commission for such purpose; or
(b) `Acceptance' means the establishment of a Heritage Preserve whereby the owner of a natural or cultural area or feature transfers less than the fee simple interest therein to the commission for such purpose. Examples are granting of a "conservation or open space easement" or the transfer of title subject to a life estate or reverter. Interests in real estate of a term of years shall not qualify for dedication under this chapter.
9. `Register' or `registration' means the process by which the owner of a natural or cultural feature shall enter into a written agreement with the commission recognizing the unique and outstanding characteristics thereof in accordance with the procedures set out in Section 51-17-100.
10. `Priority areas and features list' means the list made up of those areas and features recommended by the board, and approved by the commission, under this chapter whose preservation is of primary importance to the goals and purposes of this chapter and which are, therefore, eligible to be included as Heritage Preserves and Sites.
11. `The Heritage Trust Program' means the entire system established under this chapter to provide for the inventorying, preservation, use and management of unique and outstanding natural or cultural areas and features in this State. The term "Heritage Trust" means the legal trust which is created under Section 51-17-90."
Organization of Heritage Trust Advisory Board revised
SECTION 1281. Section 51-17-50 of the 1976 Code of Laws is amended to read:
"Section 51-17-50. The Heritage Trust Advisory Board is hereby created to assist the board of the department in carrying out its duties and responsibilities under this chapter. The advisory board shall consist of seventeen members who shall be chosen as follows and shall elect from its membership a chairman:
1. From the general public, six persons, one from each congressional district within the State, who shall be appointed by the Governor and serve for a term of six years. Of these six, four persons shall be from the scientific community who are recognized and qualified experts in the ecology of natural areas, and two persons shall be from the cultural community who are recognized and qualified experts in the history and archeology of the State. The term `expert' does not of necessity denote a professional but one learned and interested in the field.
2. From state government, the following persons or their designees:
A. The Chairman of the Wildlife and Marine Resources Commission;
B. The Executive Director of the Wildlife and Marine Resources Department;
C. The Director of the South Carolina Department of Parks, Recreation and Tourism;
D. The Director of the South Carolina Land Resources Conservation Commission;
E. The Director of the South Carolina Department of Archives and History;
F. The State Forester;
G. The State Archeologist;
H. The Director of the State Museum; and
I. The Director of the Department of Commerce.
Provided, however, of the initial appointees under this section, that of the six persons appointed under Item 1 above, two shall serve for a term of two years, two for a term of four years, and two for a term of six years."
Organization of Heritage Trust Advisory Board revised
SECTION 1282. Chapter 17, Title 51 of the 1976 Code is amended to read:
"CHAPTER 17
Heritage Trust Program
Section 51-17-10. The following words or phrases have the definition given unless clearly specified otherwise:
1. `Board of the department' means the governing board of the Department of Natural Resources.
2. `Department' means the Department of Natural Resources.
3. `Advisory board' means the Heritage Trust Advisory Board.
4. `Natural area' means an area of land or water, or a combination thereof, generally, but not necessarily, large in size. Such an area may be in public or private ownership and shall contain relatively undisturbed ecosystems, landforms, threatened, endangered, or unique plant life or animal habitats, or other unusual or outstanding scientific, educational, aesthetic, or recreational characteristics.
5. `Natural feature' means an area of land or water, or a combination thereof, which is generally, but not necessarily, small in size. Such area may be in public or private ownership and shall contain or consist of outstanding remnants or natural elements of surviving undisturbed natural ecosystems such as record size individual species of plant life, nests or rookeries, geological formations, or objects of special scientific, educational, aesthetic, or recreational character.
6. `Cultural area or feature' means an area or feature which provides an outstanding example of our historical or archeological heritage. Such an area or feature shall be a site of special historic interest or contain outstanding remnants or elements of the way of life and significant events of our past so that through their preservation and the restoration of related existing structures, or the development of a historic area, as well as through study, investigation and examination of the material remains in that life, a record may be preserved of the interrelationship and effect between man's activities and his surrounding environment. A cultural area or feature may be one that is either publicly or privately owned.
7. `Heritage Preserve' means a natural or cultural area or feature which is `dedicated' under this chapter.
8. `Heritage Site' means a natural or cultural feature which has been recognized as such through `registration' under this chapter.
9. `Dedicate or dedication' means the process by which any natural or cultural area or feature shall be established as a Heritage Preserve in accordance with the procedures set out in Section 51-17-80. Dedication may result from either of the following methods, but no power of eminent domain is hereby conferred or granted to the board of the department, the advisory board, or the department under this chapter:
(a) `Acquisition' means the establishment of a Heritage Preserve whereby the owner of a natural or cultural area or feature transfers the fee simple interest therein to the board of the department for such purpose; or
(b) `Acceptance' means the establishment of a Heritage Preserve whereby the owner of a natural or cultural area or feature transfers less than the fee simple interest therein to the board of the department for such purpose. Examples are granting of a `conservation or open space easement' or the transfer of title subject to a life estate or reverter. Interests in real estate of a term of years shall not qualify for dedication under this chapter.
10. `Register' or `registration' means the process by which the owner of a natural or cultural feature shall enter into a written agreement with the board of the department recognizing the unique and outstanding characteristics thereof in accordance with the procedures set out in Section 51-17-100.
11. `Priority areas and features list' means the list made up of those areas and features recommended by the advisory board, and approved by the board of the department, under this chapter whose preservation is of primary importance to the goals and purposes of this chapter and which are, therefore, eligible to be included as Heritage Preserves and Sites.
12. `The Heritage Trust Program' means the entire system established under this chapter to provide for the inventorying, preservation, use and management of unique and outstanding natural or cultural areas and features in this State. The term `Heritage Trust' means the legal trust which is created under Section 51-17-90.
Section 51-17-20. The General Assembly finds that as a part of the continuing growth of the population and the development of the economy of the State it is necessary and desirable that portions of the state's rich natural and cultural diversity be set aside as Heritage Preserves and Sites and protected for the benefit of present and future generations, for once disturbed they cannot be wholly restored. Such areas and features are irreplaceable as laboratories for scientific research; as reservoirs of natural materials for which the value and usefulness thereof is not yet fully known; as habitats for rare and vanishing species; and as living museums where people may observe natural biotic and environmental systems and as areas for study and enjoyment as examples of the lands, structures and related artifacts which represent significant parts of our historical and cultural heritage.
While a number of independent and differing efforts, both private as well as governmental, have been initiated to protect some of these assets, a coordinated and concerted program is needed in order to avoid duplication among these and other valuable activities and to ensure the maximum conservation of these resources through the establishment of a more effective and adequate official legal mechanism for identifying, recognizing, and protecting such areas for their outstanding characteristics. While the preservation of all of these assets in their natural state is both impractical and often not necessarily in the total best interest of the State and the public, they exist in limited and decreasing quantities. The time is now for a decision to be made as to which of these areas and sites deserve increased protection and for selecting the most appropriate means for doing so.
It is therefore the public policy of this State to secure for the people, both present and future generations, the benefits of an enduring resource of natural and cultural areas and features by establishing a system of Heritage Preserves and Sites; protecting this system; gathering and disseminating information regarding it; establishing and maintaining a listing of Heritage Preserves and Sites; and otherwise encouraging and assisting in the preservation of natural and cultural areas and features of this State.
Section 51-17-30. The Heritage Trust Program is created to achieve the following goals by protecting lands and making them available to state agencies, educational institutions, and public and private groups for the following purposes:
1 For research in such fields as archeology, agriculture, conservation, ecology, forestry, genetics, geology, history, paleontology, pharmacology, soil science, taxonomy, and similar fields by governmental employees, educational and scientific groups as well as by private individuals.
2. For the teaching of archeology, biology, conservation, ecology, geology, history, natural history, and other subjects.
3. As habitats and places for maintaining plant and animal species in communities.
4. As reservoirs of natural and cultural materials.
5. As places of natural and cultural interests and beauty whereby through visitation the public may observe, value, and enjoy natural and cultural processes and events. Unique recreational opportunities of a type not generally available through the existing State Park System may be provided, including outdoor sporting usage such as hunting and fishing as well as aesthetics, where wholly compatible and consistent with the character of the area or feature.
6. As benchmarks against which to measure such processes or events as well as the environmental degradation from natural and unnatural influences.
7. To promote the understanding and appreciation of the aesthetic, cultural, and scientific values of such areas and features by the people of the State.
8. For the preservation and protection of Heritage Preserves and Sites against modification or encroachment resulting from occupation, development, or other uses which would destroy their natural and cultural character.
9. As places for maintaining representative lands and related structures which illustrate periods, events, styles, and uses of the land in our state's historic and cultural heritage.
Section 51-17-40. The board of the department shall have the following duties, responsibilities, and powers under this chapter:
1. To serve as trustee of the trust created under this chapter and to carry out the powers, duties, and responsibilities thereunder;
2. To supervise the establishment, updating and maintenance of a statewide inventory of the natural and cultural resources and the maintenance of a list of those areas and features selected or established under this chapter as priority areas and features or as Heritage Preserves and Sites;
3. To select from the recommendations of the advisory board those natural and cultural features, the preservation of which is of primary importance to the goals and purposes of this chapter, and to classify such as priority areas and features;
4. To select from the recommendations of the advisory board those priority areas and features which should be dedicated or recognized as Heritage Preserves or Sites, and thereafter to establish as such through dedication or recognition;
5. To select from the recommendations of the advisory board those Heritage Preserves, interests therein or portions thereof, deserving of protection under the Heritage Trust and thereafter to transfer same into the corpus of the trust.
6. To conduct public hearings on the question of whether any particular natural or cultural area or feature should be established as a Heritage Preserve or Site, or on the uses or nonuses which shall apply to any area dedicated under the Heritage Trust Program;
7. To manage or provide for the management of Heritage Preserves through the promulgation of rules and regulations designed to preserve the primary natural character of such areas or features and to provide the maximum public usage thereof which is compatible and consistent with the character of the area. Management duties and responsibilities may be assigned to any governmental or private group, with its consent, with respect to any particular Heritage Preserve;
8. To cooperate with and to enter into agreement with other state, federal, county, and local units of government as well as private groups for the promotion of the purposes of this chapter including the carrying out of other requirements under federal and state law.
9. To report annually to the Governor and to the General Assembly as to the activities of the Heritage Trust Program and its future plans, and to make any specific recommendations which it feels, if implemented, would assist in achieving the goals and purposes of this chapter.
Section 51-17-50. The Heritage Trust Advisory Board is hereby created to assist the board of the department in carrying out its duties and responsibilities under this chapter. The advisory board shall consist of seventeen members who shall be chosen as follows and shall elect from its membership a chairman:
1. From the general public, six persons, one from each congressional district within the State, who shall be appointed by the Governor and serve for a term of six years. Of these six, four persons shall be from the scientific community who are recognized and qualified experts in the ecology of natural areas, and two persons shall be from the cultural community who are recognized and qualified experts in the history and archeology of the State. The term `expert' does not of necessity denote a professional but one learned and interested in the field.
2. From state government, the following persons or their designees:
A. The Chairman of the board of the Department of Natural Resources;
B. The Director of the Department of Natural Resources;
C. The Director of the South Carolina Department of Parks, Recreation and Tourism;
D. The Director of the Land Resources Conservation Districts Division of the Department of Natural Resources;
E. The Director of the South Carolina Department of Archives and History;
F. The State Forester;
G. The State Archeologist;
H. The Director of the State Museum; and
I. The Director of the Department of Commerce.
Provided, however, of the initial appointees under this section, that of the six persons appointed under Item 1 above, two shall serve for a term of two years, two for a term of four years, and two for a term of six years.
Section 51-17-60. The Heritage Trust Advisory Board shall have the following powers and duties:
1. To review the inventories prepared and submitted by the department and other state agencies as well as other appropriate sources of information and to recommend therefrom to the board of the department the selection of those areas and features as priority areas and features that it deems to be of primary importance to the goals and purposes of this chapter.
2. To evaluate, review and examine proposals of the department and other state agencies as well as citizen recommendations for the dedication or recognition of specific areas and features as Heritage Trust Preserves and Sites, and from its expertise to recommend to the board of the department the dedication or recognition of such areas and features which it feels proper.
3. To recommend to the board of the department any rules, regulations, management criteria, allowable uses and such which the advisory board feels would be beneficial to carrying out the goals and purposes of this chapter.
4. To appoint technical committees consisting of experts in specialty areas dealing with the ecology, history, and archeology of our State and any other type committees that the advisory board feels can be of assistance in fulfilling its duties and responsibilities under this chapter.
5. To assist in maintaining a list of areas and sites which through dedication become Heritage Trust Preserves or Sites and to make public information regarding their location, management, regulation, and permissible public uses and the like.
6. To authorize research and investigation for inventory and assessment purposes, including the reasonable right of entry and inspection, and to disseminate information and recommendations pertaining to natural and related cultural areas and features.
Section 51-17-70. The department shall act as the basic staff for the board of the department and the advisory board and shall have the following powers and duties:
1. The director shall select a member of his staff who shall be primarily responsible for the administration of the Heritage Trust Program.
2. The department shall supply such other staff and support services as the board of the department and the advisory board require to fulfill their duties and responsibilities under this chapter.
3. The department shall maintain a public record of any inventories or lists established under this chapter.
4. The department shall work with owners, both public and private, in the development of proposals for the dedication and recognition of natural and cultural areas and features as Heritage Preserves and Sites, and it shall keep the advisory board informed of the same in order that therefrom the advisory board may make recommendations to the board of the department as provided under this chapter.
5. The department shall consult with and work in cooperation with the Department of Archives and History, the State Archeologist, the Department of Parks, Recreation and Tourism and any other state, county, or local unit of government, or any private entity, or group which is or should be directly involved in the Heritage Trust Program as well as in any particular efforts to preserve or protect any specific area or feature under the provisions of this chapter. In all cases, the department shall attempt to avoid duplication of effort with other agencies and groups and shall have no mandatory authority hereunder to require action by any such body.
Section 51-17-80. Upon recommendation of the advisory board and approval by the board of the department, any area or feature on the `Priority Areas and Features List' may be established as a Heritage Preserve through the process of dedication. In addition to the transfer of either the fee simple interest or a lesser interest therein such as an open space easement, the owner of any such area or feature must enter into a written `Dedication Agreement' with the department whereby any restrictions, conditions, permissive and nonpermissive uses of the area or feature involved are clearly stated. Once the necessary deed, easement or the like has been filed along with the `Dedication Agreement' in the real estate records for the county in which the area or feature is located, the process of dedication shall be complete and a Heritage Preserve shall have formally been established.
No area or feature of primarily cultural significance or character shall be dedicated unless the Archives and History Commission approves thereof. The following restrictions shall apply to all Heritage Preserves:
1. The primary dedication as a Heritage Preserve shall be to preserve and protect the natural or cultural character of any area or feature so established. The board of the department and its agents shall in all cases maintain the essential character of any area or feature dedicated, and as such they are hereby declared to be at their highest, best and most important use for the public benefit. No Heritage Preserve shall be taken for any other public purpose unless the approval of both the board of the department and the Governor has been obtained. In no case shall any Heritage Preserve be taken for any private use.
2. An acquisition by dedication shall be in perpetuity.
3. In any case where an area or feature is dedicated as a Heritage Preserve through acceptance of less than the fee simple interest therein, no management of such property shall be performed by state agencies or their employees and no public funds shall be utilized in the upkeep or general maintenance of such property; provided, in the case where public usage of such area or feature is compatible and consistent with the natural character of the property and the owner is agreeable to allow such as defined under this chapter, reasonable costs of maintenance and management may be borne by the State.
4. No acquisition of any area or feature as a Heritage Preserve shall be allowed whereby the department receives the fee simple interest in the property while the grantor or transferor retains the beneficial use or interests in the land except where total and complete public usage of the area or feature as allowed under this chapter is agreed to in the `Dedication Agreement'.
5. Within ninety days from the date of the completion of the dedication process by which an area or feature is established as a Heritage Preserve, or as soon thereafter as possible, the department shall recommend a management plan for the area or feature concerned. Such proposed plan shall include recommendations as to the uses and nonuses to which the property should be put, recommendations as to whether all or a part of the area or feature is deserving of increased protection through inclusion in the Heritage Trust, the projected cost of the management of the property, and recommendations as to whether or not a user fee would be appropriate. All state, federal, county, local, and private groups interested in the area or feature involved shall be allowed to have input into the proposed management plan. The plan shall be considered by the advisory board, and therefrom the advisory board shall propose to the board of the department an overall management plan for the area or feature concerned. Upon approval by the board of the department of a plan, the department or that agency or group authorized by the board of the department shall manage the Heritage Preserve in accordance therewith.
Section 51-17-90. There is hereby created the South Carolina Heritage Trust, the trustee of which shall be the Board of the South Carolina Department of Natural Resources. The corpus of the trust shall be made up of those Heritage Preserves which the board of the department considers to be of such outstanding and unique natural or cultural character so as to be significant and essential to the carrying out of the goals and purposes of this chapter and as such, to merit a greater degree of preservation than that provided by dedication. The board of the department shall have authority to place into the corpus of the trust any Heritage Preserve that it feels meets this criteria and which has been recommended for inclusion therein by the advisory board. The beneficiaries of this trust are and shall be the present and future generations of citizens of the State, more particularly those present and future citizens residing within a close proximity to any area or feature which itself, or an interest therein, becomes, constitutes, or comprises a part of the corpus of such trust and who actually enjoy use of such area or feature; and further and more particularly, those present and future students, teachers, and persons residing in the State who are concerned with conservation or with research in any facet of ecology, history, or archeology and who actually utilize any such area or feature for the promotion of such interest.
Wherever the term `area or feature' is used in this section, it shall include `or interests therein'. The following, except as otherwise expressly provided, shall constitute substantive terms of the trust and apply to any area or feature which becomes a part of the corpus thereof:
1. Upon approval by the board of the department of the inclusion of a Heritage Preserve in the corpus of the South Carolina Heritage Trust, such transfer shall be recorded in the county in which the property is located and shall establish conclusive proof that such area or feature is suitable for preservation and protection under this chapter and constitutes a part of the corpus of the South Carolina Heritage Trust.
2. In any case wherein the previous owner of a Heritage Preserve has restricted such area or feature from inclusion in the South Carolina Heritage Trust, or where the previous owner has withheld an interest therein such as a life estate or reverter, the Heritage Preserve involved shall not be allowed to become a part of the corpus of the South Carolina Heritage Trust unless at a subsequent time such approval is obtained from such person or his successor in interest.
3. Upon the approval by the board of the department of the inclusion of any Heritage Preserve in the South Carolina Heritage Trust and the transfer of the title or interest held by the board of the department therein to the trust, subject to the provisions of Item 2 of this section, legal title to such area or feature shall be conveyed to the trustee of the South Carolina Heritage Trust and the equitable, or beneficial ownership, shall rest in those beneficiaries previously stated and described, whether such property was owned by a private or public source prior to dedication.
4. Upon approval by the advisory board, the department, the board of the department, and any agency of the State is hereby authorized to enter into agreement in advance with any person, firm, corporation, legal entity of government, or any private group that any particular area or feature shall be conveyed to the trustee in trust under the provisions of this chapter.
5. Upon approval by the board of the department of inclusion of any Heritage Preserve into the corpus of the South Carolina Heritage Trust, the advisory board shall review the management plan therefor as well as the `Dedication Agreement' and any other sources of information which it may consider appropriate. Upon approval thereof by the board of the department, the department, or that agency or group assigned management responsibilities therefor, shall manage the property in accordance therewith. Except to the extent expressly otherwise provided in the `Dedication Agreement', the following substantive terms shall be deemed to be set forth in the conveyance to the Heritage Trust and the trustee shall hold such property in trust subject to such terms:
(a) The essential natural character of the property shall be maintained.
(b) There shall be no erection of any improvements thereon except those minimal improvements necessary for the security, safety, or convenience of the public and those required for maintenance and management.
(c) Cutting or burning of timber, wood or other destruction of flora or fauna shall be permitted only for conservation or regeneration of flora or fauna; or for the control of plant succession by deliberate manipulation for restoration of preservation of a particular vegetation type or of an endangered species of flora, fauna or wildlife; or for the establishment and maintenance of nature and hiking trails, camping areas and the like where compatible and consistent with the character of the area or feature concerned and not seriously damaging or detrimental to the natural quality of the property.
(d) No stream shall be dammed or have its course altered.
(e) No motorized vehicles shall be permitted on the property other than those utilized by the trustee or its agents in management and protection of the property or used by the general public for ingress and egress to the property in compliance with the management plan for the area or feature concerned.
(f) No change shall be made in the general topography of the area or feature except for those minimal alterations which may be necessary to provide on-foot access to the public for visitation, or observation; and this shall be done only where wholly compatible and consistent with the character of the property and where no detrimental effect shall result.
(g) No activity shall be allowed or permitted which might pollute any stream, body of water, or the atmosphere.
(h) No signs, billboards or other advertising of any kind shall be erected; however, informational and directional signs related to the designation of the area or feature as a Heritage Preserve and related to the public's enjoyment thereof shall be allowed when approved by the trustee.
(i) No other acts or uses which are detrimental to the retention of the property in its natural state shall be allowed, including those detrimental to flood control, drainage, water conservation, erosion control or soil conservation, or fish or wildlife habitat preservation.
(j) Where cultural areas or features are involved, reasonable excavation, improvement and the like shall be allowed for research purposes as well as to restore such area or feature.
(k) The trust shall continue in perpetuity.
(l) Nothing in this chapter shall be interpreted as restricting the use of an existing or any future easement, express or implied, in favor of any utility or other holder of an easement for public purposes.
6. Those natural and related cultural areas and features which are acquired as Heritage Preserves in accordance with the trust provisions of this chapter are hereby declared to be as such at their highest, best and most important use for the public benefit. The State, any agencies thereof, local or county entities of government, or public utility which has the power of condemnation by law may acquire by purchase, gift, or eminent domain an easement or other interest in any property comprising a part of the corpus of the Heritage Trust; provided, however, that before any such condemnation shall occur a court of competent jurisdiction shall determine the following:
(1) there is an unavoidable and imperative public necessity that the property or interest therein be taken for another public use;
(2) that there is no feasible and prudent alternative for the proposed use for which the property or interest therein is to be taken; and
(3) that the proposal for taking includes all possible planning to minimize the harm done to such property resulting from such proposed use. Where the court deems appropriate, a public hearing shall be conducted prior to the court's decision to allow comment and input thereto. No city, county, public district, agency of the State, or public utility of the State shall acquire any real property which is a part of the corpus of the Heritage Trust through condemnation for the purpose of utilizing such property for another public use unless the acquiring entity pays or transfers to the Heritage Trust sufficient compensation to enable the operating entity to replace the real property and facilities thereon. The trustee of the trust shall have authority to utilize such proceeds to acquire additional property for the trust and to maintain those properties which form the corpus of the trust.
7. The common law of South Carolina pertaining to trusts shall be applicable to the Heritage Trust and to all areas or features, or interests therein, which become a part of this corpus. Without in any way limiting the generality of the foregoing, such trusts shall not fail for want of a trustee, and the trust shall be terminated as to any particular area or feature, or interest therein, only upon total failure of the intended purpose. Any substitution of the trustee or termination of the trust as to any particular area or feature, or interests therein, shall occur only after appropriate judicial action wherein the beneficiaries are adequately represented, and such total failure shall not in any way affect the remainder of the property within the corpus of the trust.
8. The trustee shall hold, manage, preserve and enforce the various areas and features, or interests therein, which become a part of the corpus of the trust in accordance with the terms of this chapter and in any respective conveyances and transfers thereto. To that end the trustees may adopt and modify rules and regulations for the use and enjoyment of such trust properties by the public, and may employ or appoint agents to act on their behalf in the management of such properties.
Section 51-17-100. In any case wherein a priority feature is either unsuited or unavailable for acquisition as a Heritage Preserve, the board of the department in agreement with the owner thereof may recognize such for its importance by registering it as a Heritage Site through the following registration procedures:
1. The department through its research and consultation with the owners of properties selected as priority features shall notify the advisory board of those which are unsuited or unavailable for dedication but for which the owners have made application for recognition as Heritage Sites through registration.
2. The advisory board shall review such applications and shall recommend to the board of the department the approval of those which it deems worthy of preservation through registration as Heritage Sites.
3. From the advisory board's recommendations, the board of the department shall approve those applications for recognition as Heritage Sites which it deems deserving and appropriate for carrying out the purposes of this chapter.
4. Upon approval of an application by the board of the department, the department may enter into a written agreement of registration with the owner of the feature concerned whereby the State shall give public recognition of the importance of the area or feature as a Heritage Site and the owner shall express his intent to preserve it.
5. The department shall erect and maintain an appropriate sign on the Heritage Site indicating its recognition and the owner thereof shall be given a certificate acknowledging its registration.
6. The registration agreement may be terminated by the owner or the board of the department at any time upon thirty days' notification to the other party. Such termination shall remove the feature from the Heritage Site Program, and any certificate previously issued therefor or sign erected shall be returned to the department by the property owner.
7. Unless the registration agreement is terminated, the owner of a Heritage Site shall maintain its essential natural character.
Section 51-17-110. The department shall include those costs and operating expenses necessary for the activities of the board of the department and the advisory board as well as staff support to carry out the provisions of this act in the annual State Appropriation Act. Funding for management of areas and features which become Heritage Preserves must be specifically requested by the department or that entity of government responsible for management thereof.
The board of the department shall select those Heritage Preserves for which it is appropriate to charge an individual user fee. The department may sell such user permits for a cost not to exceed five dollars and to be valid for the fiscal year in which issued at all Heritage Preserves where a permit is required. At the end of the fiscal year, the department shall distribute the funds collected among the entities of government assigned responsibility for management in direct proportion to the acreage which they manage. The proceeds of the sale of the user permits must be used to defray the management expenses.
Section 51-17-115. There is created the Heritage Land Trust Fund (the Fund), which must be kept separate from any other funds of the State. The Fund must be administered by the board of the department for the purpose of acquiring fee simple or lesser interest in priority areas, legal fees, appraisals, surveys, or other costs involved in the acquisition of interest in priority areas, and for the development of minimal facilities necessary for the protection of the essential character of priority areas.
Unexpended balances, including any interest derived from the Fund, must be carried forward each year and used only for the purposes provided in this chapter.
No Fund money may be expended to acquire any interest in property by eminent domain nor may the funds be expended to acquire interest in property without a recommendation of the Heritage Trust Advisory Board and the approval of the State Budget and Control Board.
The board of the department shall report by letter to the presiding officers of the General Assembly not later than January fifteenth of each year all funds expended pursuant to this chapter for the previous year, including the amount of funds expended and the uses to which the expenditures were applied.
The Trust Fund is eligible to receive appropriations of state general funds, federal funds, donations, gifts, bond issue receipts, securities, and other monetary instruments of value. Any reimbursement for monies expended from this fund must be deposited in this fund. Any funds received through sale, exchange, or otherwise of any Heritage Preserve acquired under this section, or any products of the Preserve such as timber, utility easement rights, and the like, shall accrue to the Fund.
Section 51-17-120. Nothing contained in this chapter shall be construed as interfering with the purposes stated in the establishment of or pertaining to any state or local park, preserve, wildlife refuge, forest or other area or the proper management and development thereof, except that any agency managing an area or feature acquired as a Heritage Preserve or a Heritage Site under the provisions of this chapter shall preserve it in accordance with the applicable conveyance, registration agreement and the rules and regulations of the board of the department applicable thereto.
Neither the acquisition of any Heritage Preserve nor the registration of any Heritage Site nor any action taken by the board of the department under any of the provisions of this chapter shall void or replace any protective status under law which an area would have were it not a Heritage Preserve or Heritage Site, the protective provisions of this chapter being supplemental thereto.
Section 51-17-130. 1. Enforcement officers of the Natural Resources Enforcement Division of the Department of Natural Resources, park rangers, and forestry rangers, as well as all other state and local law enforcement officials, shall have authority to enforce the provisions of this chapter.
2. The Attorney General shall enforce the rules and regulations of the board of the department both as they apply to those areas dedicated as well as those that are subsequently made a part of the corpus of the South Carolina Heritage Trust. In exercise of this authority, the Attorney General may, among other things and at the request of the board of the department, bring an action for injunctive or declaratory relief in any court of competent jurisdiction.
3. (a) Any person violating the provisions of this chapter where the damage to the property does not exceed five hundred dollars is guilty of a misdemeanor and, upon conviction, shall be fined not more than one hundred dollars or be imprisoned not more than thirty days for each offense.
(b) Any person violating the provisions of this chapter where the damage to the property exceeds five hundred dollars is guilty of a misdemeanor and, upon conviction, shall be fined not less than five hundred dollars nor more than five thousand dollars or be imprisoned not more than six months, or both, for each offense.
Section 51-17-140. Not more than one hundred thousand acres total of real property shall be acquired in fee under the provisions of this chapter. Moreover, no acquisition shall be made under this chapter in any county without written approval of a majority of the county delegation in the county where the property is located.
Section 51-17-150. The South Carolina Department of Natural Resources, as trustee for the Heritage Land Trust Fund, shall report annually to the Committee on Ways and Means of the House of Representatives and the Senate Finance Committee detailing acquisitions in the previous year by the Heritage Land Trust Fund and planned acquisitions for the next five years."
References revised
SECTION 1283. Section 51-19-10 of the 1976 Code is amended to read:
"Section 51-19-10. The Old Exchange Building Commission is created. It consists of nine members. Three members must be elected by the House of Representatives and Senate in joint assembly; two members must be elected by the Rebecca Motte Chapter of the Daughters of the American Revolution; two members, who must not be residents of Charleston County, must be elected by the South Carolina Society of the Daughters of the American Revolution; and the director of the Department of Parks, Recreation and Tourism and the chairman of the Department of Archives and History or their respective designees serve ex officio with voting privileges. All elected members shall serve for terms of six years and until their successors are elected and qualify. The Attorney General shall give his aid, advice, and opinion upon questions of law submitted to him by the commission. If one of the seats of the commission becomes vacant, a successor must be elected or appointed in the same manner used to fill the seat. This successor shall serve the remainder of the unexpired term. If one of the three seats on the commission elected by the House of Representatives and Senate becomes vacant during the recess of the General Assembly, the Governor may fill the vacancy by appointment until an election by the House of Representatives and Senate in joint assembly at the next session."
Appointment of a Chief Athletic Commission
SECTION 1284. Section 52-7-15 of the 1976 Code is amended to read:
"Section 52-7-15. The commission shall select its chairman and other officers necessary for terms as the commission may designate. The Director of the Department of Labor, Licensing, and Regulation shall appoint a chief athletic commissioner pursuant to Section 40-73-15. Notwithstanding any term for which an officer was elected, the commission may call an election for any officer at any time by a two-thirds vote."
Appeal of decisions
SECTION 1285. Section 52-7-20 of the 1976 Code is amended to read:
"Section 52-7-20. The commission shall meet at least twice yearly at the call of the chairman. The chairman may call other meetings when considered necessary and must do so on the direction of the majority of the commissioners. The members are allowed the usual per diem, mileage, and subsistence as provided by law for members of boards, committees, and commissions. The chief athletic commissioner shall administer the affairs of the commission under policies established by the commission. Decisions of the chief athletic commissioner may be appealed to the full commission. Any decisions of the full commission to suspend, revoke, or deny a permit or license may be appealed to an administrative law judge as provided under Article 5 of Chapter 23 of Title 1."
References revised
SECTION 1286. Section 52-7-30 of the 1976 Code is amended to read:
"Section 52-7-30. The commission has direction, management, control, and supervision over all boxing, wrestling, and sparring events, exhibitions, contests, and performances whether in person or via closed circuit television (events) in this State. The commission shall promulgate regulations as necessary for the protection of the health and safety of participants and to carry out the provisions of this article. Pursuant to 40-73-15, the Director of the Department of Labor, Licensing, and Regulation may appoint a chief inspector and referees, inspectors, other officials, and clerical help as the Director of the Department of Labor, Licensing, and Regulation determines necessary to administer the provisions of this article."
Review of decisions
SECTION 1287. Section 54-15-320 of the 1976 Code is amended to read:
"Section 54-15-320. A majority of each of the boards of commissioners of pilotage may take away the license of a pilot for a given time or declare his license null and void, as the nature of the case may demand (a) upon charge of any dereliction of duty made and proven against him, (b) if he be found guilty of using abusive or insulting language or of threatening conduct, while on his business as a pilot or (c) if charges of intoxication or conduct unbecoming a pilot, either when on or off duty, be proved against him to the satisfaction of a majority of the commissioners. But any pilot against whom any charge shall be made shall be entitled to a hearing before the board of commissioners and to make any proper defense to such charge. Any decision by the board to suspend, revoke, or otherwise restrict the license of a pilot shall be subject to review by an Administrative Law Judge as provided under Article 5 of Chapter 23 of Title 1."
Division of Aeronautics established
SECTION 1288. Chapter 1, Title 55 of the 1976 Code is amended to read:
"CHAPTER 1
General Provisions
Section 55-1-1. There is created a Division of Aeronautics within the Department of Commerce which shall be governed by the Director of the Department of Commerce as provided in Chapter 1 of Title 13.
Section 55-1-5. For the purposes of Chapters 1 through 9 of Title 55, the following words and terms are defined as follows:
(1) `Division', unless otherwise indicated, means the Division of Aeronautics of the Department of Commerce.
(2) `Director', unless otherwise indicated, means the executive and administrative head of the Department of Commerce or his designee.
(3) `Deputy Director or Designee' means the person or persons appointed by the Director, serving at his will and pleasure as his designee, to supervise and carry out the functions and duties of the Divisions of Aeronautics as provided for by law.
Section 55-1-10. No person transported by the owner or operator of an aircraft as his guest without payment for such transportation shall have a cause of action for damages against such aircraft, its owner or operator for injury, death, or loss in case of accident unless such accident shall have been intentional on the part of such owner or operator or caused by his heedlessness or his reckless disregard of the rights of others.
Section 55-1-20. Section 55-1-10 shall not relieve a public carrier of responsibility for any injuries sustained by a passenger being transported by such public carrier.
Section 55-1-30. (1) It shall be unlawful to remove or damage any airport facility or equipment with malicious intent.
(2) Any person violating the provisions of this section is guilty of a misdemeanor and, upon conviction, must be fined not less than one thousand dollars or imprisoned for not less than one year nor more than five years, or both. Where death results from the malicious damage or removal of airport facilities or equipment, such person is guilty of a felony and, upon conviction, must be sentenced to a term of from two to thirty years. Where injury results for malicious damage or removal of airport facilities or equipment, such person is guilty of a felony and, upon conviction, shall receive such sentence as may be determined by the judge.
Section 55-1-40. (1) It is unlawful for any person to enter any aircraft or damage or remove therefrom any equipment or other property attached thereto without the permission of the owner or a person authorized by the owner to grant such permission.
(2) The provisions of this section do not apply to any airport personnel or other persons while acting in an official capacity except when such capacity is used to accomplish an unlawful purpose.
(3) Any person violating the provisions of this section is guilty of a misdemeanor and, upon conviction, must be fined not less than one thousand dollars nor more than ten thousand dollars or imprisoned not less than one year nor more than ten years.
(4) The provisions of this section are cumulative.
Section 55-1-50. It shall be unlawful for any person to land or cause to be landed any aircraft on or take off from a public highway in this State except in situations authorized by the deputy director of the division or in an emergency situation in which the safety of the aircraft is involved. In any prosecution for violation hereof, the burden of proving that such emergency situation existed shall be upon the person landing the aircraft on the highway or causing it to take off therefrom.
Any person who violates the provisions of this section is guilty of a misdemeanor and, upon conviction, must be fined not more than five hundred dollars or imprisoned for not more than sixty days.
Section 55-1-60. Any person desiring to operate an intrastate scheduled airline service wherein a schedule of flights is to be posted or otherwise publicized or maintained shall apply to the division for a certificate to allow him to operate such service. Before any certificate shall be issued by the division the schedule of flights to be made by such service must be approved by the division and the equipment to be used by such airline service must also be approved. After the division issues a certificate to a person desiring to operate such airline service, the scheduled flights approved by the division must be commenced within ninety days of such certification.
Section 55-1-70. The division shall promulgate such rules and regulations as are necessary to govern the operation of any and all intrastate scheduled airline operations.
Section 55-1-80. (A) Any county aviation commission or like authority may be increased by two members, one of whom must be appointed by the House of Representatives' delegation of the county and one of whom must be appointed by the Senatorial delegation of the county. The additional members shall serve terms of the same length as other members of the commission or like authority.
(B) Any county governing body who has the authority to appoint members to the aviation commission or like authority may add two members for terms as provided in this section.
(C) In counties that have two municipalities with a population in excess of fifty thousand persons according to the latest official United States Census, and the county has an aviation commission or like authority, then the mayors of such municipalities having a population in excess of the fifty thousand persons shall serve, ex officio, as members of the commission or authority.
Section 55-1-90. If a state-owned aircraft is needed on a medical-emergency basis by an individual other than a member of the General Assembly, the aircraft may be used upon the filing with the division or other agency of state government owning and operating the aircraft of an affidavit by a medical doctor that an emergency or a life-saving situation exists with respect to the individual which would probably make waiting or the use of a commercial or nonstate-owned aircraft or other transportation not in the best interest of the individual's physical condition and upon the completion of all other records, forms, or paperwork as may be required. If the individual needing and using the state-owned aircraft on a medical-emergency basis has insurance which covers this transportation, an insurance claim must be filed by the insured individual or by any other person permitted or required to file the claim, and any reimbursement under any policy of insurance pertaining to this transportation must be paid to the State Treasurer, who must deposit the funds in the general fund of the State.
Section 55-1-100. (A) It is unlawful for any person to operate or act as a flightcrew member of any aircraft in this State:
(1) within eight hours after the consumption of any alcoholic beverage;
(2) while under the influence of alcohol; or
(3) while using any drug that affects his faculties in any way contrary to safety; or
(4) with four one-hundredths of one percent or more by weight of alcohol in his blood at the time of the alleged violation.
(B) Any person who operates or acts as a flightcrew member of any aircraft in this State is considered to have given consent to a chemical test of his breath for the purpose of determining the alcoholic content of his blood if arrested for violating the provisions of subsection (A). The test must be administered at the direction of a law enforcement officer who has apprehended a person while or after operating or acting as a flightcrew member of any aircraft in this State while under the influence of intoxicating liquor. The test must be administered by a person trained and certified by the South Carolina Law Enforcement Division, using methods approved by the division. The arresting officer may not administer the test, and no test may be administered unless the defendant has been informed that he does not have to take the test. Any person who refuses to submit to the test violates the provisions of this subsection and, upon conviction, must be punished by a fine of two hundred dollars or imprisonment for not less than forty-eight hours nor more than thirty days, or both. The penalties provided for in this subsection are in addition to those provided for in subsection (F).
No person is required to submit to more than one test for any one offense for which he has been charged, and the test must be administered as soon as practicable without undue delay.
The person tested may have a physician, qualified technician, chemist, registered nurse, or other qualified person of his own choosing conduct a test or tests in addition to the test administered by the law enforcement officer. The failure or inability of the person tested to obtain an additional test does not preclude the admission of evidence relating to the test taken at the direction of the law enforcement agency or officer.
The arresting officer or the person conducting the chemical test of the person apprehended promptly shall assist that person to contact a qualified person to conduct additional tests.
The division shall administer the provisions of this subsection and may make regulations as may be necessary to carry out its provisions. The Department of Health and Environmental Control shall cooperate with the division in carrying out its duties.
(C) In any criminal prosecution for the violation of this section, the amount of alcohol in the defendant's blood at the time of the alleged violation, as shown by chemical analysis of the defendant's breath, is admissible as evidence.
The provisions of this subsection do not limit the introduction of any other competent evidence bearing upon the question whether or not the defendant was under the influence of intoxicating liquor.
(D) Any person who is unconscious or otherwise in a condition rendering him incapable of refusal is considered not to have withdrawn the consent provided by subsection (B).
(E) The person conducting the chemical test for the law enforcement officer shall record in writing the time of arrest, the time of the test, and the results of the test, a copy of which must be furnished to the person tested or his attorney prior to any trial or other proceedings in which the results of the test are used as evidence; and any person administering any additional test shall record in writing the time, type, and results of the test and promptly furnish a copy of the test to the arresting officer. A copy of the results of the test must be furnished to the Federal Aviation Administration and the division by the arresting officer or the agency involved in the arrest.
(F) Any person who violates the provisions of subsection (A), upon conviction, must be punished by a fine of five hundred dollars or imprisonment for not less than forty-eight hours nor more than one year, or both.
(G) Any person who is convicted under the provisions of this section must be reported to the Federal Aviation Administration within ten days of conviction.
(H) For the purposes of this section flightcrew member means a pilot, flight engineer, or flight navigator assigned to duty in an aircraft during flight time, and aircraft means any contrivance now known or invented, used, or designed in the future for navigation of or flight in the air."
Name change
SECTION 1289. Chapter 5, Title 55 of the 1976 Code is amended to read:
"CHAPTER 5
Uniform State Aeronautical Regulatory Law
Section 55-5-10. This chapter may be cited as `The Uniform State Aeronautical Regulatory Act.'
Section 55-5-20. When used in this chapter:
(1) `Aeronautics' means the act or practice of the art and science of transportation by aircraft, of operation, construction, repair or maintenance of aircraft, airports, landing fields, landing strips or air navigation facilities or of air instruction;
(2) `Aircraft' means any contrivance now known or hereafter invented, used or designed for navigation of or flight in the air;
(3) `Public aircraft' means an aircraft used exclusively in governmental service, including military and naval aircraft, or of any state or territory thereof;
(4) `Civil aircraft' means any aircraft other than a public aircraft;
(5) `Airport' means any area, either of land or water, which is used or which is made available for the landing and take-off of aircraft, whether or not it provides facilities for the shelter, supply and repair of aircraft, and which meets the minimum requirements as to size, design, surface marking, equipment and management that may from time to time be provided by the division;
(6) `Landing strip' means an area, either of land or water, which is available for the landing and take-off of aircraft having not less than one hundred feet of usable width and not less than one thousand feet of usable length, the use of which shall, except in case of emergency, be only as provided from time to time by the regulations of the division;
(7) `Person' means any individual, association, copartnership, firm, company, corporation or other association of individuals;
(8) `Air instruction' means the imparting of aeronautical information in any air school, flying club or by any aviation instructor;
(9) Any person engaged in giving instruction or offering to give instruction in aeronautics, either in flying or ground subjects, or both, for or without hire or reward and advertising, representing or holding himself out as giving or offering to give such instruction shall be termed and considered an `air school';
(10) Any person other than an individual who, neither for profit nor reward, owns, leases or uses one or more aircraft for the purpose of instruction, pleasure or both, shall be termed and considered a `flying club';
(11) `Aviation instructor' means any individual engaged in giving instruction, or offering to give instruction, in aeronautics, either in flying or ground subjects, or both, for or without hire or reward, without advertising such occupation, without calling his facilities an `air school' or anything equivalent thereto and without employing or using other instructors; and
(12) `Aviation gasoline' means gasoline manufactured exclusively for use in airplanes and sold for such purposes.
Section 55-5-50. The director shall employ a deputy director of aeronautics and such other employees as necessary for the proper transaction of the division's business.
Section 55-5-60. The State Budget and Control Board shall provide, as soon as practicable, suitable offices for the division in the city of Columbia, and the division may maintain offices in any other city in the State that the division may designate and may incur the necessary expense for the office furniture, stationery, printing, incidental expenses and other expenses necessary for the enforcement of this chapter and the general promotion of aeronautics within the State.
Section 55-5-70. The division shall foster air commerce within the State and the division shall have supervision over the aeronautical activities and facilities within the State. Such authority shall include supervision and control over all airports, landing fields, landing strips, air instruction, air parking, air beacons and all other air navigation facilities. Accordingly, the division may prescribe such reasonable rules and regulations as it may deem necessary and advisable for the public safety and for the promotion of aeronautics governing the designing, laying out, location, building, equipping, operation and use of all airports, landing fields or landing strips. The division may further prescribe such reasonable rules and regulations as it may deem necessary governing the curriculum, equipment, personnel and operation and management of all air instruction, for the purpose of protecting the health and safety of students receiving or to receive such instruction and insuring, so far as may be, the public safety through the proper training and instruction of student aviators. The division may further prescribe such reasonable rules and regulations as it may deem necessary and advisable for the public safety and the safety of those engaged in aeronautics and for the promotion of aeronautics governing the establishment, location, maintenance and operation of all air markings, air beacons and other air navigation facilities. The division may further prescribe such reasonable air traffic rules and regulations as it shall deem necessary for public safety and the safety of those engaged in aeronautics and for the promotion of aeronautics; provided, however, that no rules or regulations prescribed by the division under the authority of this section shall be inconsistent with the then current federal legislation governing aeronautics and the regulations duly promulgated thereunder.
Section 55-5-75. From information obtained from the Federal Aviation Administration, the division quarterly shall furnish the respective county auditors of this State with a list of all aircraft registered in their county according to the records of the Federal Aviation Administration.
Section 55-5-80. The division shall assist in the development of aviation and aviation facilities within the State for the purpose of safeguarding the interest of those engaged in all phases of the industry and of the general public and of promoting aeronautics.
The division may cooperate with any county or municipality in the establishment, maintenance and operation of airports, landing fields or emergency landing strips and may do so in cooperation with other states or with any federal agency.
Section 55-5-86. Notwithstanding any other provision of law, no airport or landing strip open for public use shall be constructed in this State unless the master plan study or the construction plans and specifications for such airport or landing strip have been approved by the division. No additions shall be made to any existing airport or landing strip open for public use unless the master plan study or the construction plans and specifications for such airport or landing strip have been approved by the division.
Section 55-5-87. No state airport construction funding shall be provided to any airport unless it has an airport layout plan approved by and on file with the division at the time the request for funding is made.
Section 55-5-88. The provisions of Sections 55-5-86 and 55-5-87 shall not apply to any airport or landing strip which does not receive state funds.
Section 55-5-90. The public safety requiring and the advantages of uniform regulation making it desirable in the interest of aeronautical progress that aircraft operating within this State should conform with respect to design, construction and airworthiness to the standards prescribed by the United States Government with respect to navigation of civil aircraft subject to its jurisdiction, it shall be unlawful for any person to operate, pilot or navigate, or cause or authorize to be operated, piloted or navigated, any aircraft within the State unless such aircraft has an appropriate effective license, issued by the government of the United States; provided, however, that this restriction shall not apply to public aircraft of the United States or of any state, territory or possession thereof or to aircraft licensed by a foreign country with which the United States has a reciprocal agreement covering the operations of such licensed aircraft; and provided, further, that the division may, in its discretion, waive this provision in the interest of a non-passenger-carrying flight solely for inspection or test purposes.
Section 55-5-100. The public safety requiring and the advantages of uniform regulation making it desirable in the interest of aeronautical progress that a person engaging within this State in navigating aircraft in any form of navigation shall have the qualifications necessary for obtaining and holding a pilot's license issued by the government of the United States, it shall be unlawful for any person to pilot any aircraft in this State unless such person is the holder of a correct effective pilot's license issued by the government of the United States; provided, however, that this restriction shall not apply to those persons operating public aircraft of the United States or public aircraft of any state, territory or possession thereof or operating any aircraft licensed by a foreign country with which the United States has a reciprocal agreement covering the operation of such licensed aircraft.
Section 55-5-110. The certificate of the license required for pilots shall be kept in the personal possession of the licensee when he is operating aircraft within this State and must be presented for inspection upon the demand of any passenger, any peace officer of this State, any authorized official or employee of the division or any official manager or person in charge of any airport in this State upon which he shall land; or upon the reasonable request of any other person. The aircraft license must be carried in the aircraft at all times and must be conspicuously posted therein where it may be readily seen by passengers or inspectors; and the license must be presented for inspection upon the demand of any passenger, any peace officer of this State, any authorized official or employee of the division or any official, manager or person in charge of any airport in this State upon which it shall land; or upon the reasonable request of any other person. In any criminal prosecution under any of the provisions of this chapter a defendant who relies for his justification upon a license of any kind shall have the burden of proving that he is properly licensed or is the possessor of a proper license, as the case may be, and the fact of non-issuance of such license may be evidenced by a certificate signed by the official having power of issuance, or his deputy, under seal of office, stating that he has made diligent search in the records of his office and that from the records it appears that no such license was issued up to the date of the making of such certificate.
Section 55-5-120. It shall be unlawful for any airport, landing field, air school, flying club, air beacon or other air navigation facility to be used or operated without the approval of the division. All proposed airports, landing fields, air schools, flying clubs, air beacons or other air navigation facilities shall first be approved by the division before they or any of them shall be used or operated. The division may issue a certificate of its approval in each case.
Section 55-5-130. No license, rule, order or regulation promulgated under the authority of this chapter shall apply to airports, landing fields, air beacons, air markings or other air navigation facilities owned or operated by the government of the United States, of the State, or of any county or municipality of this State.
Section 55-5-140. In any case in which the division may deem it necessary it may order the closing of any airport or landing field or order any air school, flying club, air beacon or other air navigation facility to cease operations until it shall have complied with the requirements laid down by the division.
Section 55-5-150. The division shall have power to hold investigations, inquiries, and hearings concerning matters covered by the provisions of this chapter and all accidents in aeronautics within this State. All hearings conducted by the division shall be open to the public. Each officer of the division designated by it to hold any inquiry, investigation or hearing shall have the power to administer oaths and affirmations, certify to all official acts, issue subpoenas and compel the attendance and testimony of witnesses and the production of papers, books, and documents. In case of failure to comply with any subpoena or order issued under authority of this chapter the division, or its authorized representative, may invoke the aid of any circuit court in this State. The court may thereupon order the witness to comply with the requirements of the subpoena or order to give evidence touching the matter in question. Any failure to obey the order of the court may be punished by the court as a contempt thereof.
Section 55-5-160. In order to facilitate the making of investigations by the division, in the interest of the public safety and the promotion of aeronautics, the public interest requires and it is therefore provided that the reports of investigations or hearings, or any part thereof or any testimony given thereat, shall not be admitted in evidence or used for any purpose in any suit, action or proceeding growing out of any matter referred to in said investigation, hearing or report thereof, except in case of criminal or other proceedings instituted by or in behalf of the division under the provisions of this chapter; nor shall any employee of the division be required to testify to any facts ascertained in, or information gained by reason of, his official capacity and, further, no employee of the division shall be required to testify as an expert witness in any suit, action or proceeding involving any aircraft.
Section 55-5-170. The division shall have a seal and shall make such rules and regulations for its administration, not inconsistent herewith, as it may deem expedient. It may from time to time amend such rules and regulations.
Section 55-5-180. The division shall keep on file with the Secretary of State and at the principal office of the division for public inspection a copy of all its rules and regulations. On or before December thirty-first, in each year, the division shall make to the Governor a full report of its proceedings for the year ending December first in each year and may submit with such report such recommendations pertaining to its affairs as seem to it to be desirable.
Section 55-5-190. The division, its members and employees and every county and municipal officer charged with the enforcement of state and municipal laws shall enforce and assist in the enforcement of this chapter. The division may also in the name of the State enforce the provisions of this chapter by injunction in the circuit courts of this State. Other departments and political subdivisions of the State may also cooperate with the Division of Aeronautics of the Department of Commerce in the development of aeronautics and aeronautic facilities within the State.
Section 55-5-200. To carry out the provision of this chapter the division and any officer, state or municipal, charged with the duty of enforcing this chapter, may inspect and examine at reasonable hours any premises and the buildings and other structures thereof where airports, landing fields, air schools, flying clubs, air beacons or other air navigation facilities are operated.
Section 55-5-210. In any case in which the division rejects an application for permission to operate or establish an airport, landing field, air school, flying club, air beacon or other air navigation facility or in any case in which the division shall issue any order requiring certain things to be done, it shall set forth its reasons therefor and shall state the requirements to be met before such approval will be given or such order modified or changed.
Section 55-5-220. Any order made by the division pursuant to this chapter shall be served upon the interested person by registered mail or in person before such order shall become effective.
Section 55-5-230. Any person against whom an order has been entered may within ten days after the service thereof appeal to the circuit court of the county in which the property affected by the order is located for the purpose of having the reasonableness or lawfulness of the order inquired into and determined.
Section 55-5-240. The person taking the appeal shall file notice of intention to appeal with the grounds thereof in the office of the clerk of such circuit court, and summons shall thereupon be issued by the clerk and shall be served upon the director or his designee. Upon the filing of the notice of intention to appeal with the grounds thereof, the appeal shall be docketed for trial no less than ten days or more than thirty days after the service of the summons and shall be tried by the circuit court without formal pleadings in term time or in vacation. Upon trial of the appeal the court shall hear evidence as to matters concerning the order in question, the condition of the property in question and the manner of its operation and shall enter judgment either affirming or setting aside the order of the division; or the court may remand the matter to the division for further hearing. The filing of the notice of intention to appeal with the grounds thereof shall operate as a supersedeas.
Section 55-5-250. If no appeal is taken from the order of the division within the period fixed, the party against whom the order was entered shall be deemed to have waived the right to have the reasonableness or lawfulness of the order reviewed by the court, and there shall be no trial of that issue in any court in which suit may be instituted for the penalty for failure to comply with the order.
Section 55-5-260. Any person failing to comply with the requirements or violating any of the provisions of this chapter or the rules and regulations for the enforcement of this chapter made by the division is guilty of a misdemeanor and punishable by a fine of not more than five hundred dollars or by imprisonment for not more than ninety days or both.
Section 55-5-270. The terms and provisions of this chapter shall not apply to unlicensed aircraft engaged entirely in private flying and which do not engage in flying for hire in any way.
Section 55-5-280. All moneys received from licensing of airports, landing fields or air schools, the tax on aviation gasoline and fees for other licenses issued under this chapter shall be paid into the State Treasury and credited to the fund known as the `State aviation fund.'
Section 55-5-290. Any moneys or fees coming into the hands of the division may be used for the necessary expenses of the division essential to the carrying out of this chapter but no overdraft shall be created by reason of any such expenditures."
Name change
SECTION 1290. Section 55-8-10(a) of the 1976 Code is amended to read:
"(a) `Agency' means the Division of Aeronautics of the Department of Commerce."
Service of process
SECTION 1291. Section 55-8-50(a)(2) of the 1976 Code is amended to read:
"(2) Issued by an insurer or surety company not authorized to do business in this State found by the agency to afford adequate protection and which has filed or shall file with the agency a power of attorney authorizing the Director of the Department of Commerce to accept service on its behalf of notice or process in any action upon the policy or bond arising out of such accident."
Service of process
SECTION 1292. Section 55-8-170 of the 1976 Code is amended to read:
"Section 55-8-170. (a) The operation of an aircraft on the land or waters of or in the air over this State shall be deemed an appointment by the owner or operator of the Director of the Department of Commerce to be his true and lawful attorney upon whom may be served all legal process in any action or proceeding against him, arising from the ownership, maintenance, use or operation of such aircraft and resulting in damage or loss to person or property, and the use or operations shall be signification of his agreement that any such process against him which is so served shall be of the same legal force and validity as though served upon him personally, provided such person is a nonresident of this State or at the time a cause of action arises is a resident of this State but subsequently becomes a nonresident of this State.
(b) Service of process shall be made by serving the original and a copy of the complaint together with a fee of two dollars upon the director of the South Carolina Department of Commerce and by mailing of a copy of such process and of the complaint by the plaintiff or his attorney to the defendant at his last known address, within five days thereafter by registered mail. In lieu of such mailing to defendant in a foreign state, plaintiff may cause a copy of the complaint and process to be served personally in the foreign state upon such defendant by any adult person not a party to the suit by actually delivering it to the defendant or by offering to make such delivery in case defendant refuses to accept delivery.
(c) Proof of service of process upon the Director of the Department of Commerce or proof of mailing or personal delivery to the defendant shall be made by the affidavit of the party doing the act, which shall be filed in the office of the clerk of court in which the suit is filed. Process shall be deemed to be completed upon the filing of such affidavit and of the original registry receipt issued by the post office upon the mailing of such registered letter, if service is obtained by mail."
Name change
SECTION 1293. Chapter 9, Title 55 of the 1976 Code is amended to read:
"CHAPTER 9
Uniform Airports Act
Section 55-9-10. This chapter may be cited as the `Uniform Airports Act.'
Section 55-9-20. It is the intent and purpose of this chapter that all provisions herein relating to the issuance of bonds and levying of taxes for airport purposes and condemnation for airports and airport facilities shall be construed in accordance with the general provisions of the law of this State governing the right and procedure of municipalities to condemn property, issue bonds and levy taxes.
Section 55-9-30. The division and the municipalities, counties and other political subdivisions of this State may, separately or jointly, acquire, establish, construct, expand, own, lease, control, equip, improve, maintain, operate, regulate and police airports and landing fields for the use of aircraft, either within or without the geographical limits of such municipalities, counties and other political subdivisions and may use for such purpose or purposes any available property owned or controlled by the division or such municipalities, counties or other political subdivisions; but no county shall exercise the authority hereby conferred outside of its geographical limits except in an adjoining county and this only jointly with such adjoining county.
Section 55-9-40. Any lands acquired, owned, leased, controlled or occupied by the division or such counties, municipalities or other political subdivisions for the purpose or purposes enumerated in Section 55-9-30 shall and are hereby declared to be acquired, owned, leased, controlled or occupied for public, governmental and municipal purposes.
Section 55-9-50. The governing bodies of the several counties of this State may acquire land by gift, purchase or condemnation for the purpose of building, constructing and maintaining landing strips and airports. The provisions of Sections 55-9-70 to 55-9-180 shall not apply to land that may be acquired under the provisions of this section.
Section 55-9-70. Private property needed by the division or a county, municipality or other political subdivision for an airport or landing field or for the expansion of an airport or landing field may be acquired by grant, purchase, lease or other means, if such political subdivision or the division, as the case may be, is able to agree with the owner of such property on the terms of such acquisition and otherwise by condemnation in the manner provided by the law under which such political subdivision or the division is authorized to acquire real property for public purposes. The provisions of this section shall apply to property needed by the Adjutant and Inspector General of South Carolina.
Section 55-9-80. When necessary in order to provide unobstructed airspace for the landing and taking off of aircraft utilizing airports and landing fields acquired or maintained under the provisions of this chapter, the division and the counties, municipalities, and other subdivisions of this State may acquire air rights over private property necessary to ensure safe approaches to the landing areas of the airports and landing fields and for the purpose of establishing and protecting aeroplane landing fields. Such air rights may be acquired by grant, purchase, lease, or condemnation pursuant to the provisions of the Eminent Domain Procedure Act (Chapter 2 of Title 28).
Section 55-9-90. The division and such counties, municipalities and other political subdivisions of this State may acquire the right or easement for a term of years, or perpetually, to place and maintain suitable markers for the daytime and to place, operate and maintain suitable lights for the nighttime marking of buildings or other structures or obstructions, for the safe operation of aircraft utilizing airports and landing fields acquired or maintained under the provisions of this chapter. Such rights or easements may be acquired by grant, purchase, lease or condemnation in the same manner as is provided in this chapter for the acquisition of the airport or landing field itself or the expansion thereof.
Section 55-9-190. The division, counties, municipalities and other political subdivisions of this State which have established airports or landing fields or which acquire, lease or set apart real property for any such purpose may:
(1) Construct, equip, improve, maintain and operate such airports or landing fields or vest authority for the construction, equipment, improvement, maintenance and operation thereof in an officer, board or body of such political subdivision, the expense of such construction, equipment, improvement, maintenance and operation to be a responsibility of such political subdivision;
(2) Adopt regulations and establish charges, fees and tolls for the use of such airports or landing fields, fix penalties for the violation of such regulations and establish liens to enforce payment of such charges, fees and tolls; and
(3) Lease for a term not exceeding twenty-five years such airports or landing fields to private parties for operation or lease or assign for a term not exceeding twenty-five years to private parties for operation space, area, improvements and equipment on such airports or landing fields, provided in each case that in so doing the public is not deprived of its rightful, equal and uniform use thereof.
Section 55-9-200. The purchase price or award for real property acquired, in accordance with the provisions of this chapter, for an airport or landing field may be paid for by appropriation of moneys available therefor or wholly or partly from the proceeds of the sale of bonds of such county, municipality or other political subdivision as the legislative body of such political subdivision shall determine; subject, however, to the adoption of a proposition therefor at a regular or special election, if the adoption of such a proposition is a prerequisite to the issuance of bonds of such political subdivision for public purposes generally.
Section 55-9-210. The local public authorities having power to appropriate moneys within the counties, municipalities or other political subdivisions of this State acquiring, establishing, developing, operating, maintaining or controlling airports or landing fields under the provisions of this chapter may appropriate and cause to be raised by taxation or otherwise in such political subdivisions moneys sufficient to carry out therein the provisions of this chapter and may also use for any such purpose moneys derived from such airports or landing fields.
Section 55-9-220. Any unexpended moneys appropriated for airport development for a particular county may be transferred to repairs to airports for that particular county upon request of the division.
Section 55-9-230. Counties, municipalities or other political subdivisions of this State acquiring, establishing, developing, operating, maintaining, controlling or having an interest in airports or landing fields, without the geographical limits of such subdivisions, under the provisions of this chapter may promulgate, amend and enforce police regulations for such airports or landing fields, irrespective of whether or not the title to the properties is vested in, and the management and operation of any such airport or landing field is by, a commission created by statute or otherwise.
Section 55-9-240. All land surrounding public-owned airports in this State, which are funded partially or wholly by this State, shall be zoned by appropriate county, municipal or regional authorities so as to conform with pertinent regulations of the Federal Aviation Administration, Department of Transportation."
Receipt of funds
SECTION 1294. Section 55-11-10(5) of the 1976 Code is amended to read:
"(5) Designate the Division of Aeronautics of the Department of Commerce as its agent, to accept, receive, receipt for and disburse federal or state funds or other funds, public or private, made available for the purposes of this section, as may be required or authorized by law;"
Name change
SECTION 1295. Section 55-11-520 of the 1976 Code is amended to read:
"Section 55-11-520. Pursuant to the provisions of subsection 6(c), Section 13, Article 10 of the Constitution of this State, in order to provide funds to pay a portion of the costs of (1) acquiring land, (2) constructing, enlarging, improving, extending, renovating, and equipping suitable air carrier hub terminal facilities to be located in this State, (3) purchasing equipment, ground support equipment, machinery, special tools, maintenance, boarding facilities, and any and all additional necessary, real or personal property for the operation of air carrier hub terminal facilities, and (4) to pay a portion or all of the costs of any insurance required to guarantee the payment of, or any credit enhancement facility utilized in connection with, obligations issued by a special purpose district or other political subdivision of this State, not exceeding fifty million dollars of general obligation bonds of this State, may be issued in the manner provided in this article and by law upon their authorization in a state capital improvement bond bill as permitted by Section 2-7-105. As a further condition to the issuance of these bonds after their authorization in a state capital improvement bond bill, the special purpose district or other political subdivision requesting bonds to be issued pursuant to this article must have entered into a binding contract with an air carrier committing the air carrier to use the air carrier hub terminal facility for a period of ten years or the period of time needed to retire any indebtedness incurred by the special purpose district or other political subdivision to construct the air carrier hub terminal facility, whichever is less. Upon receipt of a certified copy of the executed contract, the Director of the Department of Commerce shall consider an air carrier's financial ability, willingness, and commitment to serve this State and other factors considered relevant by the Director of the Department of Commerce. If the Director of the Department of Commerce determines that it is in the best interest of this State for the State to assist in the providing of suitable air carrier hub terminal facilities, the Director of the Department of Commerce shall recommend that the Budget and Control Board consider recommending the issuance of bonds of this State for the purposes authorized in this article and shall forward his written approval and request to the Budget and Control Board. After review by the Joint Bond Review Committee, the board may allocate bond proceeds for the purposes authorized in this article to match on a dollar for dollar basis, local funds expended by any special purpose district or other political subdivision of this State. Local funds may include user fees and other monies made available by the special purpose district or political subdivision, but may not include federal grants made available to the special purpose district or other political subdivision for runway construction."
Name change
SECTION 1296. Section 55-15-10(f) of the 1976 Code is amended to read:
"(f) The term `public authority' means the Division of Aeronautics of the Department of Commerce, amunicipality, a county or other political subdivision of this State, separately or jointly, authorized to aquire land, air rights, safety markers, and lights as provided in Chapter 9 of Title 55."
Name change
SECTION 1297. Section 56-1-10 of the 1976 Code is amended to read:
"Section 56-1-10. For the purpose of this title, unless otherwise indicated, the following words, phrases and terms are hereby defined as follows:
(1) `Driver' means every person who drives or is in actual physical control of a vehicle.
(2) `Operator' means every person who drives or is in actual physical control of a motor vehicle upon a highway or who is exercising control over or steering a vehicle being towed by a motor vehicle.
(3) `Owner' means a person, other than a lienholder, having the property or title to a vehicle. The term includes a person entitled to the use and possession of a vehicle subject to a security interest in another person, but excludes a lessee under a lease not intended as security.
(4) `Department' means the Department of Revenue and Taxation.
(5) `State' means a state, territory or possession of the United States and the District of Columbia.
(6) `Highway' means the entire width between the boundary lines of every way publicly maintained when any part thereof is open to the use of the public for purposes of vehicular travel.
(7) `Motor vehicle' means every vehicle which is self-propelled, except `moped' as defined in Article 9 of this chapter, and every vehicle which is propelled by electric power obtained from overhead trolley wires but not operated upon rails.
(8) `Motorcycle' means every motor vehicle having no more than two permanent functional wheels in contact with the ground or with a detachable side car or trailer and having a saddle for the use of the rider, but excluding a tractor.
(9) `Nonresident' means every person who is not a resident of this State.
(10) `Nonresident's operating privilege' means the privilege conferred upon a nonresident by the laws of this State pertaining to the operation by such person of a motor vehicle, or the use of a vehicle owned by such person, in this State.
(11) `Conviction' shall include the entry of any plea of guilty, the entry of any plea of nolo contendere and the forfeiture of any bail or collateral deposited to secure a defendant's appearance in court.
(12) `Cancellation of driver's license' means the annulment or termination by formal action of the Department of Public Safety of a person's driver's license because of some error or defect in the license or because the licensee is no longer entitled to such license; the cancellation of a license is without prejudice, and application for a new license may be made at any time after such cancellation.
(13) `Revocation of driver's license' means the termination by formal action of the Department of Public Safety of a person's driver's license or privilege to operate a motor vehicle on the public highways, which privilege to operate is not subject to renewal or restoration, except that an application for a new license may be presented and acted upon by the department.
(14) `Suspension of driver's license' means the temporary withdrawal by formal action of the Department of Public Safety of a person's driver's license or privilege to operate a motor vehicle on the public highways, which temporary withdrawal shall be as specifically designated.
(15) `Three-wheel vehicle' means every motor vehicle having no more than three permanent functional wheels in contact with the ground and having a seat or saddle for the use of the operator, but excluding a tractor."
Name change
SECTION 1298. Section 56-1-80 of the 1976 Code is amended to read:
"Section 56-1-80. Every application for a driver's license or permit must:
(1) be made upon the form furnished by the department; (2) be accompanied by the proper fee, and acceptable proof of date and place of birth;
(3) contain the full name, date of birth, sex, race, and residence address of the applicant and briefly describe the applicant;
(4) state whether the applicant has been licensed as an operator or chauffeur and, if so, when and by what state or country; and
(5) state whether any such license has ever been suspended or revoked or whether an application has ever been refused and, if so, the date of and reason for such suspension, revocation, or refusal.
Whenever application is received from a person previously licensed in another state, the Department of Revenue and Taxation in conjunction with the Department of Public Safety, shall request a copy of the applicant's record from the other state. When received, the record becomes a part of the driver's record in this State with the same force and effect as though entered on the operator's record in this State in the original instance. Every person who obtains a driver's license for the first time in South Carolina, and every person who renews his driver's license in South Carolina must be furnished a written request form for completion and verification of liability insurance coverage.
The completed and verified form or an affidavit prepared by the department that neither he, nor any resident relative, owns a motor vehicle subject to the provisions of this chapter, must be returned to the department within thirty days from the date the license is issued or renewed. Failure to return the form or affidavit results in the suspension of the newly issued or renewed driver's license until a properly executed form or affidavit is returned to the department."
Name change
SECTION 1299. Section 56-1-90 of the 1976 Code is amended to read:
"Section 56-1-90. The department may by rule require every applicant to submit for identification purposes proof of name, Social Security number, and date and place of birth when applying for a driver's license. An applicant for a driver's license, driver's permit, or special identification card or a renewal thereof may sufficiently prove the existence and validity of his Social Security number, for purposes of Section 14-7-130, by any reasonably reliable document containing the Social Security number. Such a document includes, but is not limited to, an official Social Security card, Social Security check, Social Security form SSA-1099, letter from the Social Security Administration, voter registration card, payroll stub, Federal W-2 form, or U.S. military identification card. The numbers may also be obtained from the department pursuant to Section 12-54-240(B)(7) which permits the department to submit taxpayer Social Security numbers to the department and to the State Election Commission. For purposes of this section, when a licensee is applying for a replacement license, the department must accept an affidavit as evidence that the licensee has established the existence and validity of his Social Security number at the time of license application. The driver's license number of a person may be his Social Security number.
This section does not prevent issuance of a driver's license or identification card to a foreign exchange student participating in a valid foreign exchange program."
Name change
SECTION 1300. Section 56-1-135 of the 1976 Code is amended to read:
"Section 56-1-135. (A) Notwithstanding the provisions of Section 56-1-130, a paid or volunteer firefighter of a lawfully and regularly organized fire department designated to drive a firefighting vehicle may have a special endorsement affixed to his driver's license which authorizes him to drive this vehicle for the purpose of carrying out the duties and responsibilities of a fire department and related activities.
(B) Every political subdivision and unincorporated community operating a lawfully and regularly organized fire department of this State shall designate a law enforcement officer or the fire chief or his designee as its safety officer. The safety officer shall meet the qualifications set forth in the department guidelines. However, he does not have to be a full-time employee. A firefighter desiring to drive the vehicle referred to in subsection (A) shall demonstrate his ability to exercise ordinary and reasonable control in the operation of this vehicle to a safety officer. The fire department, including volunteer fire departments, shall submit to the department a list of the persons designated to drive the vehicle.
(C) It is the responsibility of the agency or fire department who operates the vehicle to keep the list of designated drivers current. Changes in the list of drivers must be reported to the department within thirty days from the change."
Name change
SECTION 1301. Section 56-1-145 of the 1976 Code is amended to read:
"Section 56-1-145. The increased revenue realized by the department resulting from the amendment to Section 56-1-140 of the 1976 Code contained in this section must be expended by the Department of Transportation to improve access routes to distressed and impacted areas of the State."
Name change
SECTION 1302. Section 56-1-220 of the 1976 Code is amended to read:
"Section 56-1-220. (a) Eye examinations shall be required for all persons prior to having their licenses renewed by the department. Such examinations may be made by any person authorized by law in this State to examine eyes or by designated personnel of the department.
(b) The renewal license forms distributed by the department shall be designed so as to contain a certification that the vision of the person examined meets the minimum standards required by the department or have been corrected to meet such requirements. Such certification shall be executed by the person conducting the examination. Provided, that the minimum standards of the department shall not require a greater degree of vision than 20/40 corrected in one eye.
(c) Any person whose vision is corrected to meet such minimum standards shall have such correction noted on his driver's license by the department.
(d) It shall be unlawful for any person whose vision requires correction in order to meet the minimum standards of the department to drive a motor vehicle in this State without the use of such correction.
(e) Any person violating the provisions of this section shall be deemed guilty of a misdemeanor and upon conviction shall be fined not more than one hundred dollars or imprisoned for not more than thirty days."
Name change
SECTION 1303. Section 56-1-225 of the 1976 Code is amended to read:
"Section 56-1-225. (a) Any person licensed to drive a motor vehicle in this State who is involved as a driver in four accidents in any twenty-four month period, which are reported to the director, may, in the discretion of the department, be required to take any portion of the driver's license examination deemed appropriate. Any person who has had four such accidents and fails to submit to such test within thirty days after having been notified by the department shall have his driver's license suspended until he takes and passes such test.
(b) The director shall promulgate regulations to implement the provisions of this section."
Name change
SECTION 1304. Section 56-1-270 of the 1976 Code is amended to read:
"Section 56-1-270. The Department of Revenue and Taxation, having good cause to believe that a person holding a South Carolina driver's license is incompetent or otherwise not qualified to be licensed because of physical or mental disability may, upon written notice of at least ten days to the licensee, require him to submit to an examination. Upon the conclusion of such examination the department shall take action as may be appropriate and may suspend or revoke the license of such person or permit him to retain such license or may issue a license subject to restrictions permitted under Section 56-1-170. The license of any person may be suspended or revoked if they refuse or neglect to submit to such an examination."
Name change
SECTION 1305. Section 56-1-280 of the 1976 Code is amended to read:
"Section 56-1-280. The Department of Public Safety shall forthwith revoke or suspend the license of any driver upon receiving a record of such driver's conviction of any offense for which revocation or suspension is required by law.
The Department of Public Safety shall forthwith revoke the driver's license of any person upon receiving notice of the conviction of such person for:
(1) Manslaughter resulting from the operation of a motor vehicle; or
(2) Any felony under the laws of this State in the commission of which a motor vehicle is used.
The Department of Public Safety shall also revoke or suspend a driver's license for any other cause as may be required by other laws of this State."
Name change
SECTION 1306. Section 56-1-290 of the 1976 Code is amended to read:
"Section 56-1-290. In addition to the grounds for suspension or revocation of license set forth elsewhere in this article and in Chapter 5 of this title, the Department of Public Safety shall forthwith revoke for a period of six months the license of any person upon receiving satisfactory evidence of the conviction of any such person who has been found guilty of operating a vehicle for hire without a license in violation of Section 58-23-1210."
Name change
SECTION 1307. Section 56-1-300 of the 1976 Code is amended to read:
"Section 56-1-300. In addition to other authority of law, the Department of Public Safety may suspend or revoke the license of a driver without preliminary hearing upon a showing by its records or other sufficient evidence that licensee:
(1) Has been convicted of an offense for which mandatory revocation or suspension is required upon conviction; or
(2) Has been convicted of an offense in another state which if committed in this State would be grounds for suspension or revocation."
Name change
SECTION 1308. Section 56-1-310 of the 1976 Code is amended to read:
"Section 56-1-310. The privilege of driving a motor vehicle on the highways of this State given to a nonresident under this article shall be subject to suspension or revocation by the Department of Public Safety in like manner and for like cause as a driver's license issued under the laws of this State may be suspended or revoked."
Name change
SECTION 1309. Section 56-1-320 of the 1976 Code is amended to read:
"Section 56-1-320. The Department of Public Safety may, in its discretion, suspend or revoke the license of any resident of this State or the privilege of a nonresident to drive a motor vehicle in this State upon receiving notice of the conviction of such person in another state of an offense therein which, if committed in this State, would be grounds for the suspension or revocation of the South Carolina license.
Provided, however, that if another state restores limited or restricted driving privileges to the person whose license has been suspended or revoked such restoration of privileges shall also be valid in this State under the same terms and conditions under which driving is authorized in the resident state of the person concerned."
Name change
SECTION 1310. Section 56-1-330 of the 1976 Code is amended to read:
"Section 56-1-330. Every court having jurisdiction over offenses committed under this article or other state laws or municipal ordinances regulating the operation of motor vehicles on highways shall forward to the Department of Public Safety a record of the conviction of any person in such court for a violation of such laws other than regulations governing standing or parking where a matter of safety is not involved."
Name change
SECTION 1311. Section 56-1-340 of the 1976 Code is amended to read:
"Section 56-1-340. The Department of Public Safety may, upon receiving a record of the conviction in this State of a nonresident driver of a motor vehicle of any offense under the motor vehicle laws of this State, forward a certified copy of such record to the motor vehicle administrator in the state wherein the person so convicted is a resident. Whenever the Department of Public Safety receives a request for a driver's record from another state, the record shall be forwarded without charge."
Name change
SECTION 1312. Section 56-1-350 of the 1976 Code is amended to read:
"Section 56-1-350. In all cases of cancellation, suspension or revocation of drivers' licenses, the Department of Public Safety shall notify the licensee as prescribed in Section 56-1-360 that his license has been canceled, suspended or revoked, and such licensee shall within ten days after notice of cancellation, suspension or revocation return his license to the Department of Public Safety or the Department of Revenue and Taxation. Any person wilfully failing to return his license as required by this section may, on conviction thereof, be fined one hundred dollars or imprisoned for thirty days."
Name change
SECTION 1313. Section 56-1-360 of the 1976 Code is amended to read:
"Section 56-1-360. When notice is required concerning a person's driver's license the notice must be given by the Department of Public Safety by depositing the notice in the United States mail with postage prepaid addressed to the person at the address contained in the driver's license records of the department. The giving of notice by mail is complete ten days after the deposit of the notice. A certificate by the deputy director of the motor vehicle records division of the Department of Public Safety that the notice has been sent as required in this section is presumptive proof that the requirements as to notice of suspension have been met even if the notice has not been received by the addressee."
Name change
SECTION 1314. Section 56-1-365 of the 1976 Code is amended to read:
"Section 56-1-365. Any person who forfeits bail posted for, is convicted of, or pleads guilty or nolo contendere in general session, municipal, or magistrate's court to an offense which as part of the punishment to be imposed requires that his driver's license be revoked or suspended shall surrender immediately or cause to be surrendered his driver's license to the clerk of court or magistrate upon the verdict or plea. The defendant must be notified at the time of arrest of his obligation to bring, and surrender his license, if convicted, to the court or magistrate at the time of his trial, and if he fails to produce his license after conviction, he may be fined in an amount not to exceed two hundred dollars. If the defendant fails subsequently to surrender his license to the clerk or magistrate immediately after conviction, he must be fined not less than fifty dollars nor more than two hundred dollars.
The Department of Public Safety may collect from the clerk of court or magistrate the driver's license and ticket immediately after receipt. Along with the driver's license, the clerks and magistrates shall give the Department of Public Safety agents tickets, arrest warrants, and other documents or copies of them, as necessary for the Department of Public Safety to process the revocation or suspension of the licenses. If the Department of Public Safety does not collect the license and ticket immediately, the magistrate or clerk shall forward the license, ticket, and other documentation to the Department of Public Safety within five days after receipt. Any clerk or magistrate who wilfully fails or neglects to forward the driver's license and ticket as required is liable to indictment and, upon conviction, must be fined not exceeding five hundred dollars.
The Department of Public Safety shall notify the defendant of the suspension or revocation. Except as provided below, if the defendant surrendered his license to the magistrate or clerk immediately after conviction the effective date of the revocation or suspension is the date of surrender. If the magistrate or clerk wilfully fails to forward the license and ticket to the Department of Public Safety within five days, the suspension or revocation does not commence until the Department of Public Safety receives them. If the defendant is already under suspension for a previous offense at the time of his conviction or plea, the period of suspension for the subsequent offense runs consecutively and does not commence until the expiration of the suspension or revocation for the prior offense.
If the defendant fails to surrender his license, the suspension or revocation operates as otherwise provided by law.
If the defendant surrenders his license, upon conviction, and subsequently files a notice of appeal, the appeal shall act as a supersedeas as provided in Section 56-1-430. Upon payment of a ten-dollar fee and presentment by the defendant of a certified or clocked-in copy of the notice of appeal, the Department of Public Safety shall issue him a certificate on a form prescribed and furnished by the Department of Public Safety which entitles him to operate a motor vehicle for a period of sixty days after the verdict or plea. The certificate must be kept in the defendant's possession while operating a motor vehicle during the sixty-day period, and failure to have it in his possession is punishable in the same manner as failure to have a driver's license in possession while operating a motor vehicle."
Name change
SECTION 1315. Section 56-1-370 of the 1976 Code is amended to read:
"Section 56-1-370. The licensee may, within ten days after notice of suspension, cancellation, or revocation, except in cases where the suspension, cancellation, or revocation is made mandatory upon the Department of Public Safety, request in writing a review and upon receipt of the request the Department of Public Safety shall afford him a review in accordance with the State Administrative Procedures Act, in the county where the licensee was arrested unless the Department of Public Safety and the licensee agree that the review may be held in some other county. The review may be held by a duly authorized agent of the Department of Public Safety. Upon the review, the department shall either rescind its order of suspension, cancellation, or revocation or, good cause appearing therefor, may continue, modify, or extend the suspension, cancellation, or revocation of the license."
Name change
SECTION 1316. Section 56-1-380 of the 1976 Code is amended to read:
"Section 56-1-380. The Department of Public Safety shall not suspend a driver's license or privilege to drive a motor vehicle on the public highways for a period of more than one year, except as otherwise permitted or authorized by law.
Any person whose license or privilege to drive a motor vehicle on the public highways has been revoked shall not be entitled to have such license or privilege renewed or restored unless the revocation was for a cause which has been removed, except that after the expiration of at least one year from the date on which the revoked license was surrendered to and received by the department or the Department of Public Safety, or as may otherwise be provided for by law, such person may make application for a new license as provided by law, but the department shall not then issue a new license unless and until it is satisfied, after investigation of the character, habits and driving ability of such person, that it will be safe to grant the privilege of driving a motor vehicle on the public highways."
Name change
SECTION 1317. Section 56-1-390 of the 1976 Code is amended to read:
"Section 56-1-390. (1) Whenever the Department of Public Safety suspends or revokes the license of a person under its lawful authority, the license remains suspended or revoked and must not be reinstated or renewed nor may another license be issued to that person until he also remits to the department a reinstatement fee of thirty dollars.
(2) All fees collected by the department under this provision must be placed in the state general fund, except that one dollar of the fees listed in item (1) must be credited to the `Keep South Carolina Beautiful Fund'. From the `Keep South Carolina Beautiful Fund', the Department of Transportation must expend such funds as may be necessary to employ, within the Department of Transportation, a person with training in horticulture to administer a program for beautifying the rights-of-way along state highways and roads."
Name change
SECTION 1318. Section 56-1-400 of the 1976 Code is amended to read:
"Section 56-1-400. The Department of Public Safety upon suspending or revoking a license shall require that such license shall be surrendered to the Department of Public Safety or the Department of Revenue and Taxation. If a license is surrendered to the Department of Revenue and Taxation, the department shall immediately notify the Department of Public Safety that the individual's license has been surrendered. At the end of the period of suspension, other than suspension for reckless driving, driving under the influence of intoxicants or pursuant to the point system such license so surrendered shall be returned to the licensee, or in the discretion of the department, a new license issued to him. Until the Department of Public Safety notifies the department, the department shall not return nor restore a license which has been suspended for reckless driving, driving under the influence of intoxicants, or for violations under the point system until the person has filed an application for a new license, submitted to an examination as upon an original application, and has satisfied the Department of Public Safety, after an investigation of the character, habits, and driving ability of the person, that it would be safe to grant him the privilege of driving a motor vehicle on the public highways. Provided, that the department, in its discretion, where the suspension is for violation under the point system may waive such examination, application, and investigation. A record of suspension shall be endorsed on the license returned to the licensee, or the new license issued to the licensee, showing grounds of such suspension. After five years from the date of conviction or suspension the driver may apply for a new identical license, and the department shall issue such identical license without any notation of suspension endorsed thereon. But this provision shall not affect nor bar the reckoning of prior offenses for reckless driving and driving under the influence of intoxicating liquor or narcotic drugs, as provided in Article 23 of Chapter 5 of this title."
Any person whose license has been suspended or revoked for an offense within the jurisdiction of the court of general sessions shall provide the Department of Public Safety with proof that the fine owed by the person has been paid before the department may return or issue the person a license. Proof that the fine has been paid may be a receipt from the clerk of court of the county in which the conviction occurred stating that the fine has been paid in full."
Name change
SECTION 1319. Section 56-1-410 of the 1976 Code is amended to read:
"Section 56-1-410. A person denied a license by the Department of Revenue and Taxation or whose license has been canceled, suspended or revoked by the Department of Public Safety, except when such suspension is under Section 56-1-740 or when such cancellation or revocation is mandatory under the provisions of this article, may file a petition within thirty days thereafter for a hearing in the matter in a court of record in the county wherein such person shall reside. Such court is hereby vested with jurisdiction, and it shall be its duty to set the matter for hearing upon thirty days' written notice to the Director of the Department of Public Safety and thereupon to take testimony and examine the facts of the case and to determine whether the petitioner is entitled to a license or is subject to suspension, cancellation or revocation of license under the provisions of this article. For the purpose of this section only, the burden of proof in any such hearing shall be on the Department of Public Safety."
Name change
SECTION 1320. Section 56-1-420 of the 1976 Code is amended to read:
"Section 56-1-420. If any court restrains or enjoins the Department of Public Safety from enforcing the suspension or revocation of any license and the suspension or revocation is finally determined to have been properly put into effect by the Department of Public Safety, the time during which the revocation or suspension was made ineffective by the judicial order shall not be considered part of the time during which the suspension or revocation was in effect. It is the purpose of this section to insure that the license shall be suspended or revoked for the full term of such suspension or revocation, if proper in the first place."
Name change
SECTION 1321. Section 56-1-460 of the 1976 Code is amended to read:
"Section 56-1-460. A person who drives a motor vehicle on any public highway of this State when his license to drive is canceled, suspended, or revoked must, upon conviction, be fined two hundred dollars or imprisoned for thirty days for the first violation, for the second violation fined five hundred dollars and imprisoned for sixty consecutive days, and for the third and subsequent violation imprisoned for not less than ninety days nor more than six months, no portion of which may be suspended by the trial judge. The Department of Public Safety upon receiving a record of the conviction of any person under this section upon a charge of driving a vehicle while his license was suspended for a definite period of time shall extend the period of the suspension for an additional like period. If the original period of suspension has expired or terminated before trial and conviction, the Department of Public Safety shall again suspend the license of the person for an additional like period of time. If the suspension is not for a definite period of time, the suspension must be for an additional three months. If the license of a person cited for a violation of this section is suspended solely pursuant to the provisions of Section 56-25-20, then the additional period of suspension pursuant to this section is thirty days and the person does not have to offer proof of financial responsibility as required under Section 56-9-500 prior to his license being reinstated. If the conviction was upon a charge of driving while a license was revoked, the department shall not issue a new license for an additional period of one year from the date the person could otherwise have applied for a new license. Only those violations which occurred within a period of five years including and immediately preceding the date of the last violation constitute prior violations within the meaning of this section.
If the license of the person convicted was suspended pursuant to the provisions of Section 56-5-2990, then he must be punished as follows and no part of the minimum sentence may be suspended:
(1) for a first offense, imprisoned for not less than ten nor more than thirty days;
(2) for a second offense, imprisoned for not less than sixty days nor more than six months;
(3) for a third and subsequent offense, not less than six months nor more than three years."
Name change
SECTION 1322. Section 56-1-463 of the 1976 Code is amended to read:
"Section 56-1-463. Section 56-1-460 specifically does not apply if and when the proposed suspension is based solely on lack of notice being given to the Department of Public Safety when the person has in fact paid any fines or penalties due."
Name change
SECTION 1323. Section 56-1-475 of the 1976 Code is amended to read:
"Section 56-1-475. Notwithstanding the provisions of Section 56-1-400 of the 1976 Code, a person whose driver's license has been suspended by the Department of Public Safety who has moved his residence to another state and has obtained a valid driver's license in such state may lawfully operate a motor vehicle within this State after the expiration of the period of time for which his South Carolina driver's license was suspended."
License surrender
SECTION 1324. Section 56-1-510 of the 1976 Code is amended to read:
"Section 56-1-510. It is a misdemeanor punishable by a fine of not more than two hundred dollars or imprisonment for not more than thirty days for a first offense and not more than five hundred dollars or imprisonment for not more than six months for a second or subsequent offense for any person:
(1) to display or cause or permit to be displayed or have in his possession any canceled, revoked, suspended, or fraudulently altered driver's license or personal identification card;
(2) to lend his driver's or personal identification card to any other person or knowingly permit the use of it by another;
(3) to display or represent as one's own driver's license or personal identification card any driver's license acquired in violation of this section; (4) to fail or refuse to surrender to the department or the Department of Public Safety upon lawful demand any driver's license which has been suspended, canceled, or revoked;
(5) to use a false or fictitious name in any application for a driver's license or personal identification card or knowingly make a false statement or to knowingly conceal a material fact or otherwise commit a fraud in any such application;
(6) to permit any unlawful use of a driver's license or personal identification card issued to him; or
(7) to do any act forbidden or fail to perform any act required by this article."
Administration of article
SECTION 1325. Section 56-1-520 of the 1976 Code is amended to read:
"Section 56-1-520. The Department of Public Safety and the Department of Revenue and Taxation shall administer and enforce the provisions of this article in general, and law enforcement officers generally shall also enforce applicable provisions within their respective jurisdictions. Recorders and municipal courts are hereby vested with all jurisdiction necessary to hear, try and determine criminal cases involving violations of this article occurring within the corporate limits of such municipalities where the punishment does not exceed a fine of one hundred dollars or imprisonment for thirty days, the same as magistrates."
Promulgation of regulations
SECTION 1326. Section 56-1-530 of the 1976 Code is amended to read:
"Section 56-1-530. The Department of Revenue and Taxation and the Department of Public Safety may promulgate rules and regulations for administration and enforcement of this article, and all such rules and regulations shall have the full force and effect of law."
Name change
SECTION 1327. Section 56-1-540 of the 1976 Code is amended to read:
"Section 56-1-540. The department shall:
(1) File every application for a license received by it and shall maintain suitable indexes containing, in alphabetical order:
(a) all applications denied and on each thereof note of the reasons for such denial;
(b) all applications granted; and
(c) the name of every licensee whose license has been canceled, suspended or revoked by the Department of Public Safety and after each such name a note of the reasons for such action; and
(2) The Department of Public Safety shall file all accident reports and abstracts of court records of convictions received by it under the laws of this State and, in connection therewith, maintain convenient records or make suitable notations in order that an individual record of each licensee showing the convictions of such licensee and the traffic accidents in which he has been involved shall be readily ascertainable and available for the consideration of the department upon application for renewal of license and at other suitable times."
Crediting of fees
SECTION 1328. Section 56-1-550 of the 1976 Code is amended to read:
"Section 56-1-550. All fees collected by the Department of Revenue and Taxation and the Department of Public Safety under the provisions of this article shall be credited to the state general fund."
Vehicle licensing authority for compact purposes
SECTION 1329. Section 56-1-630 of the 1976 Code is amended by adding:
"(4) `licensing authority' for purposes of South Carolina shall mean the Department of Public Safety."
Name change
SECTION 1330. Section 56-1-740 of the 1976 Code is amended to read:
"Section 56-1-740. The Department of Public Safety may suspend, for not more than six months, the driver's license and privilege of a person upon a showing by its records, based on a uniform point system as authorized in this article, that the licensee has been convicted with such frequency of offenses against motor vehicle traffic laws or ordinances as to indicate a disrespect for the laws or ordinances and a disregard for the safety of other persons on the highways. For the purposes of this article, a total of twelve points assessed against a driver as determined by the values designated in Section 56-1-720 indicates disrespect and disregard. The privilege of driving a motor vehicle on the highways of this State, given to a nonresident under the laws of this State, is subject to suspension by the Department of Public Safety in like manner, and for like cause, the same as a driver's license issued by this State may be suspended.
Periods of suspension of the license or privilege of a person for various accumulation of points must be as follows, with the person having the privilege to request a review of his driving record:
(1) twelve to fifteen points--three months' suspension;
(2) sixteen or seventeen points--four months' suspension;
(3) eighteen or nineteen points--five months' suspension;
(4) twenty points and over--six months' suspension."
Name change
SECTION 1331. Section 56-1-745(B) of the 1976 Code is amended to read:
"(B) Notwithstanding the provisions of Section 56-1-460, any person convicted under this section shall be punished pursuant to Section 56-1-440 and is not required to furnish proof of financial responsibility as provided for in Section 56-9-500. The conviction shall not result in any insurance penalty under the Merit Rating Plan promulgated by the Department of Insurance."
Name change
SECTION 1332. Section 56-1-746 of the 1976 Code is amended to read:
"Section 56-1-746. (A) The Department of Public Safety shall suspend the driver's license of any person convicted of the offenses contained in Sections 56-1-510(2), 56-1-510(4), 56-1-515, 61-9-50, 61-9-60, 61-13-287, 20-7-370, and 20-7-380 as follows:
(1) for a conviction for a first offense, for a period of ninety days;
(2) for a conviction for a second or subsequent offense, for a period of six months.
(B) For the purposes of determining prior offenses, a conviction of any of the offenses enumerated in subsection (A) within ten years of the date of the violation is considered a prior offense.
(C) Notwithstanding the provisions of Section 56-1-460, any person convicted under this section shall be punished pursuant to Section 56-1-440 and is not required to furnish proof of financial responsibility as provided for in Section 56-9-500. The conviction shall not result in any insurance penalty under the Merit Rating Plan promulgated by the Department of Insurance.
(D)(1) If an individual is employed or enrolled in a college or university at any time while his driver's license is suspended pursuant to this section, he may apply for a special restricted driver's license permitting him to drive only to and from work or his place of education and in the course of his employment or education during the period of suspension. The department may issue the special restricted driver's license only upon showing by the individual that he is employed or enrolled in a college or university, that he lives further than one mile from his place of employment or education, and that there is no adequate public transportation between his residence and his place of employment or his place of education.
(2) If the department issues a special restricted driver's license, it shall designate reasonable restrictions on the times during which and routes on which the individual may operate a motor vehicle. A change in the employment hours, place of employment, status as a student, or residence must be reported immediately to the department by the licensee.
(3) The fee for each special restricted driver's license, including a reissue caused by changes in the place and hours of employment, education, or residence, is twenty dollars.
(4) The operation of a motor vehicle outside the time limits and route imposed by a special restricted license by the person issued that license is a violation of Section 56-1-460."
Name change
SECTION 1333. Section 56-1-770 of the 1976 Code is amended to read:
"Section 56-1-770. Any driver who has accumulated points under the provisions of this article shall have the number of his points reduced by four upon proving to the satisfaction of the Department of Public Safety that he has completed the National Safety Council's `Defensive Driving Course' or its equivalent, if the course is completed after the points have been assessed. The course must be taught by an instructor accredited by the National Safety Council whose procedures for accreditation are set forth in `Manual of Rules and Procedures' published by the National Safety Council or equivalent accreditation procedures. The Department of Public Safety shall establish procedures by which driver training schools may apply to the Department of Public Safety for approval of a defensive driving course which will qualify those successfully completing the course for a reduction in points pursuant to this section. The Department of Public Safety shall approve the National Safety Council's `Defensive Driving Course' or its equivalent when offered by driver training schools and taught by an instructor accredited by the National Safety Council or equivalent accreditation procedures. No person's points may be reduced more than one time in any three-year period by the method provided for in this section."
Name change
SECTION 1334. Section 56-1-790 of the 1976 Code is amended to read:
"Section 56-1-790. The Department of Public Safety may enter into a reciprocal agreement with the proper agency of any other state for the purpose of reporting convictions in one state by a person holding a driver's license in the other state. Such convictions in another state of a violation therein which, if committed in this State, would be a violation of the traffic laws of this State, may be recorded against a driver the same as if the conviction had been made in the courts of this State.
Guilty pleas, failure to respond to charges or convictions by courts-martial or post or base commanders of any of the various branches of the Armed Forces of the United States or by a United States Commissioner of a violation either on or off government property which, if committed in this State, would be a violation of the laws of this State, may, in the discretion of the Department of Public Safety, be recorded against a driver the same as if the plea of guilty, forfeiture of bond or conviction had been made in the courts of this State."
Name change
SECTION 1335. Section 56-1-800 of the 1976 Code is amended to read:
"Section 56-1-800. In all proceedings held under the provisions of this article, photostatic or other copies of the reports filed with the Department of Public Safety, including official reports received from directors of motor vehicle divisions, court officials or other agencies of other states charged with the duty of keeping records of offenses against the traffic laws of such states and reports of courts-martial or United States Commissioners, when such copies are duly certified by the director of the motor vehicle division as true copies of the original on file therewith, shall be deemed prima facie evidence of the information contained on such reports for the purpose of showing any conviction."
Name change
SECTION 1336. Section 56-1-810 of the 1976 Code is amended to read:
"Section 56-1-810. Upon the determination by the Department of Public Safety that a person has accumulated sufficient points to warrant the suspension of his license, the Department of Public Safety shall notify such licensee in writing, return receipt requested, that his license has been suspended, and such licensee shall return his license to the Department of Public Safety or the Department of Revenue and Taxation within the time required by Section 56-1-350 and subject to the penalties thereof for failing to do so."
Name change
SECTION 1337. Section 56-1-820 of the 1976 Code is amended to read:
"Section 56-1-820. The licensee may, within ten days after notice of suspension, request in writing a review, and upon receipt of the request the Department of Public Safety shall afford him a review in accordance with the State Administrative Procedures Act."
Name change
SECTION 1338. Section 56-1-830 of the 1976 Code is amended to read:
"Section 56-1-830. Any person whose license has been suspended under the provisions of this article may, within ten days after notice of suspension or within ten days after notice of the result of the review if such review is requested and held, apply to the resident or presiding circuit judge of the circuit in which the applicant resides, either at chambers or open court, for a review upon the record, certified to by the deputy director of the Motor Vehicle Records and Vehicle Inspection Division of the Department of Public Safety, to determine if the action taken by the Department of Public Safety is lawful and in accordance with the provisions of this article."
Name change
SECTION 1339. Section 56-1-840 of the 1976 Code is amended to read:
"Section 56-1-840. The Department of Public Safety shall administer and enforce the provisions of this article and may make rules and regulations necessary for its administration not inconsistent with law."
Name change
SECTION 1340. Section 56-1-850 of the 1976 Code is amended to read:
"Section 56-1-850. Nothing contained in this article shall affect the action of the Department of Public Safety in suspending, revoking or canceling any driver's license when such action is mandatory under the provisions of any law of this State."
Name change
SECTION 1341. Section 56-1-1020 of the 1976 Code is amended to read:
"Section 56-1-1020. An habitual offender shall mean any person whose record as maintained by the Department of Public Safety shows that he has accumulated the convictions for separate and distinct offenses described in subsections (a), (b) and (c) committed during a three-year period; provided, that where more than one included offense shall be committed within a one-day period such multiple offenses shall be treated for the purposes of this article as one offense:
(a) Three or more convictions, singularly or in combination of any of the following separate and distinct offenses arising out of separate acts:
(1) Voluntary manslaughter, involuntary manslaughter or reckless homicide resulting from the operation of a motor vehicle;
(2) Operating or attempting to operate a motor vehicle while under the influence of intoxicating liquor, narcotics or drugs;
(3) Driving or operating a motor vehicle in a reckless manner;
(4) Driving a motor vehicle while his license, permit, or privilege to drive a motor vehicle has been suspended or revoked, except a conviction for driving under suspension for failure to file proof of financial responsibility;
(5) Any offense punishable as a felony under the motor vehicle laws of this State or any felony in the commission of which a motor vehicle is used;
(6) Failure of the driver of a motor vehicle involved in any accident resulting in the death or injury of any person to stop close to the scene of such accident and report his identity;
(b) Ten or more convictions of separate and distinct offenses involving moving violations singularly or in combination, in the operation of a motor vehicle, which are required to be reported to the Department of Public Safety for which four or more points are assigned pursuant to Section 56-1-720 or which are enumerated in subsection (a) of this section.
(c) The offenses included in subsections (a) and (b) shall be deemed to include offenses under any federal law, any law of another state or any municipal or county ordinance of another state substantially conforming to the above provisions.
(d)(1) For the purposes of this article, the term `conviction' shall mean a final conviction, forfeiture of bail or a plea of guilty or nolo contendere.
(2) For purposes of determining the number of convictions for separate and distinct offenses committed during any three year period, a person shall be deemed to be convicted of an offense on the date the offense was committed if he is subsequently convicted of committing such offense as `conviction' is defined in item (1) of this subsection.
The provisions of this article shall not apply to convictions which occurred prior to June 14, 1973."
Name change
SECTION 1342. Section 56-1-1030 of the 1976 Code is amended to read:
"Section 56-1-1030. When a person is convicted of one or more of the offenses listed in Section 56-1-1020(a), (b), or (c), the Department of Public Safety must review its records for that person. If the Department of Public Safety's review of its records shows that the person is an habitual offender as defined in Section 56-1-1020, the Department of Public Safety must institute agency proceedings in accordance with the Administrative Procedures Act to revoke or suspend the person's driver's license except that appeals under this section must be made to the appropriate magistrate's court as set forth below.
If after appropriate proceedings, the Department of Public Safety finds the person to be an habitual offender, the Department of Public Safety shall direct the person not to operate a motor vehicle on the highways of this State and to surrender his driver's license or permit to the Department of Public Safety or the department. A resident of South Carolina found to be an habitual offender may appeal to the chief magistrate in the county in which the appellant resides. A nonresident person found to be an habitual offender may appeal to the chief magistrate of Richland County. In any appeal, the magistrate shall hear and determine the matter de novo."
Name change
SECTION 1343. Section 56-1-1090 of the 1976 Code is amended to read:
"Section 56-1-1090. No license to operate motor vehicles in this State may be issued to an habitual offender nor shall a nonresident habitual offender operate a motor vehicle in this State:
(a) for a period of five years from the date of a final decision by the Department of Public Safety that a person is an habitual offender and if, upon appeal, the finding is sustained by a magistrate unless the period is reduced to two years as permitted in item (c);
(b) until financial responsibility requirements are met;
(c) until, upon petition and for good cause shown, the Department of Public Safety may restore to the person the privilege to operate a motor vehicle in this State upon terms and conditions as the Department of Public Safety may prescribe, subject to other provisions of law relating to the issuance of drivers' licenses. The petition permitted by this item may be filed after one year has expired from the date of the decision of the Department of Public Safety finding the person to be an habitual offender. At this time and after hearing, the Department of Public Safety may reduce the five-year period of item (a) to a two-year period for good cause shown. If the two-year period is granted, it must run from the date of the final decision of the Department of Public Safety. If the two-year period is not granted, no petition may be filed again until after five years have expired from the date of the decision of the Department of Public Safety. However, a petition or court order is not required for the restoration of driving privileges and the issuance of a license after the five-year waiting period has expired and all financial responsibilities have been fulfilled."
Name change
SECTION 1344. Section 56-1-1100 of the 1976 Code is amended to read:
"Section 56-1-1100. It is unlawful for a person to operate a motor vehicle in this State while the decision of the Department of Public Safety prohibiting the operation remains in effect. A person found to be an habitual offender under the provisions of this article, who is thereafter convicted of operating a motor vehicle in this State while the decision of the Department of Public Safety prohibiting the operation is in effect, is guilty of a misdemeanor and must be imprisoned for not less than one year nor more than five years.
For the purpose of enforcing this section, in any case in which the accused is charged with driving a motor vehicle while his driver's license or permit is suspended or revoked or is charged with driving without a license, the Department of Public Safety before hearing the charges shall determine whether the person has been adjudged an habitual offender and is barred from operating a motor vehicle on the highways of this State. If the person is found to be an habitual offender, the Department of Public Safety shall notify the solicitor or Attorney General, and he shall cause the appropriate criminal charges to be lodged against the offender."
Name change
SECTION 1345. Section 56-1-1120 of the 1976 Code is amended to read:
"Section 56-1-1120. On and after July 1, 1974, when a motorist is convicted of one or more of the violations listed in this article, the Department of Public Safety shall review his record and if such violations bring his total convictions equal to or more than the totals listed in this article, the Department of Public Safety shall certify his record to the Attorney General or to the solicitor of the judicial circuit where the person resides."
Name change
SECTION 1346. Section 56-1-1130 of the 1976 Code is amended to read:
"Section 56-1-1130. Commencing January 1, 1974 the Department of Public Safety shall send a written notice to any person who it determines is in danger of becoming an habitual offender."
Name change
SECTION 1347. Section 56-1-1320 of the 1976 Code is amended to read:
"Section 56-1-1320. A person with a South Carolina driver's license, a person who had a South Carolina driver's license at the time of the offense referenced below, or a person exempted from the licensing requirements by Section 56-1-30, who is or has been convicted of a first offense violation of an ordinance of a municipality, or law of this State, that prohibits a person from operating a vehicle while under the influence of intoxicating liquor, drugs, or narcotics, and whose license is not presently suspended for any other reason, may apply to the motor vehicle division of the department to obtain a provisional driver's license of a design to be determined by the department to operate a motor vehicle. The person shall enter an Alcohol and Drug Safety Action Program as provided for in Section 56-1-1330, shall furnish proof of responsibility as provided for in Section 56-1-1350, and shall pay to the department a fee of five dollars for the provisional driver's license. The provisional driver's license is not valid for more than six months from the date of issue shown on the license. The determination of whether or not a provisional driver's license may be issued pursuant to the provisions of this article as well as reviews of cancellations or suspensions under Sections 56-1-370 and 56-1-820 must be made by the Director of the Department of Public Safety or his designee."
Name change
SECTION 1348. Section 56-1-1330 of the 1976 Code is amended to read:
"Section 56-1-1330. The provisional driver's license provision must include a mandatory requirement that the applicant enter an Alcohol and Drug Safety Action Program certified by the South Carolina Commission on Alcohol and Drug Abuse and be assessed to determine the extent and nature of an alcohol and drug abuse problem, if any, and successfully complete treatment or education services recommended by the program. The applicant shall bear the cost of the services which must be determined by the administering agency and approved by the South Carolina Commission on Alcohol and Drug Abuse. The cost may not exceed seventy-five dollars for assessment, one hundred twenty-five dollars for education services, two hundred twenty-five dollars for treatment services, and three hundred dollars in total for any and all services. The commission shall recommend subsequent cost changes on an annual basis subject to the approval of the General Assembly. If the applicant fails to complete successfully the services as directed by the Department of Public Safety, the South Carolina Commission on Alcohol and Drug Abuse shall notify the Department of Public Safety, and the provisional driver's license issued by the department must be revoked, and the suspension imposed for the full periods specified in Section 56-5-2990, the suspension to begin on date of notification to the individual."
Name change
SECTION 1349. Section 56-1-1340 of the 1976 Code is amended to read:
"Section 56-1-1340. The applicant shall have a provisional driver's license in his possession at all times while driving a motor vehicle, and the issuance of such license and the violation convictions shall be entered in the records of the Department of Public Safety for a period of ten years as required by Sections 56-5-2940 and 56-5-2990 of the 1976 Code."
Name change
SECTION 1350. Section 56-1-1730 of the 1976 Code is amended to read:
"Section 56-1-1730. A person is eligible for a moped operator's license without regard to his eligibility for or the status of any other driver's license or permit. The Department of Public Safety may suspend, revoke, or cancel a moped operator's license only for violations committed while operating a moped. A moped operator's license may be suspended, revoked, or canceled in the same manner and upon the same grounds for which any other motor vehicle operator's license or permit may be suspended, revoked, or canceled."
Name change
SECTION 1351. Section 56-1-1760 of the 1976 Code is amended to read:
"Section 56-1-1760. Every licensee shall have his license in his immediate possession at all times when operating a moped and shall display it upon demand of any officer or agent of the department or Department of Public Safety or any police officer of the State."
Name change
SECTION 1352. Section 56-1-2050 of the 1976 Code is amended to read:
"Section 56-1-2050. (A) Notification of Convictions. (1) A driver holding a commercial driver license issued by this State, who is convicted of violating a state law or local ordinance relating to motor vehicle traffic control in any other state, other than a parking violation, shall notify the Department of Public Safety in the manner specified by the Department of Public Safety within thirty days of conviction.
(2) A driver holding a commercial driver license issued by this State, who is convicted of violating a state law or local ordinance relating to motor vehicle traffic control in this or any other state, other than a parking violation, shall notify his employer in writing of the conviction within thirty days of the conviction.
(B) A driver whose commercial driver license is suspended, revoked, or canceled by a state, or who loses the privilege to drive a commercial motor vehicle in any state for any period, including being disqualified from driving a commercial motor vehicle, or who is subject to an out of service order, shall notify his employer of that fact before the end of the business day following the day the driver received notice of that fact.
(C) A person who applies to be a commercial motor vehicle driver shall provide the employer, at the time of the application, with the following information for the ten years preceding the date of application:
(1) a list of the names and addresses of the applicant's previous employers for which the applicant was a driver of a commercial motor vehicle;
(2) the dates between which the applicant drove for each employer;
(3) the reason for leaving that employer;
(4) any additional information required by the employer;
(5) certification that all information furnished is true and complete."
Name change
SECTION 1353. Section 56-1-2100 of the 1976 Code is amended to read:
"Section 56-1-2100. (A) The commercial driver license must be marked `Commercial Driver License' or `CDL', and must be, to the maximum extent practicable, tamper proof. It must include, but not be limited to, the following information:
(1) the name and residential address of the person;
(2) the person's color photograph;
(3) a physical description of the person including sex, height, and weight;
(4) date of birth;
(5) a number or identifier considered appropriate by the department;
(6) the person's signature;
(7) the class or type of commercial motor vehicles which the person may drive together with any endorsements or restrictions;
(8) the name of this State; and
(9) the dates between which the license is valid.
(B) The holder of a valid commercial driver license may drive all vehicles in the class for which that license is issued and all lesser classes of vehicles except motorcycles. Vehicles which require an endorsement may not be driven unless the proper endorsement appears on the license. Commercial driver licenses may be issued with the following classifications, endorsements, and restrictions:
(1) Classifications: vehicle weight rating of twenty-six thousand one pounds or more if the gross vehicle weight rating of the vehicle being towed is in excess of ten thousand pounds; weight rating of twenty-six thousand one pounds or more and any such vehicle towing a vehicle not in excess of ten thousand pounds; weight rating of less than twenty-six thousand one pounds and any such vehicle towing a vehicle with a gross vehicle weight rating not in excess of ten thousand pounds comprising: persons, including the driver; material which require the vehicle to be placarded under 49 C.F.R. part 172, subpart F.
(2) Endorsements: transporting hazardous material; and tank vehicle endorsements.
(3) Restrictions: `K' restricts the driver to vehicles not equipped with airbrakes.
(C) Before issuing a commercial driver license, the department must obtain a driving record from the Department of Public Safety through the Commercial Driver License Information System, the National Driver Register, and from each state in which the person has been licensed.
(D) Within ten days after issuing a commercial driver license, the department must notify the Commercial Driver License Information System of that fact, providing all information required to insure identification of the person.
(E) A commercial driver license issued by the department expires on the licensee's birth date on the fourth calendar year after the calendar year in which it is issued.
(F) Every person applying for renewal of a commercial driver license shall complete the application form required by Section 56-1-2090(A), providing updated information and required certifications. If the applicant wishes to retain a hazardous materials endorsement, the written test for a hazardous materials endorsement must be taken and passed again. The person shall submit to a vision test."
Name change
SECTION 1354. Section 56-1-2110(G) of the 1976 Code is amended to read:
"(G) After suspending, revoking, or canceling a commercial driver license, the Department of Public Safety shall update its records to reflect that action immediately. After suspending, revoking, or canceling a nonresident commercial driver's privilege, the Department of Public Safety shall notify the licensing authority of the state which issued the commercial driver license or commercial driver instruction permit within ten days."
Name change
SECTION 1355. Section 56-1-2130 of the 1976 Code is amended to read:
"Section 56-1-2130. (A) A person who drives a commercial motor vehicle within this State is considered to have given consent, subject to provisions of Section 56-5-2950, to take a test of that person's blood, breath, or urine for the purpose of determining that person's alcohol concentration or the presence of other drugs.
(B) Tests may be administered at the direction of a law enforcement officer, who after stopping or detaining the driver of a commercial motor vehicle, has probable cause to believe that the driver was driving a commercial motor vehicle while having a measurable amount of alcohol in his system.
(C) A person requested to submit to a test as provided in subsection (A) must be warned by the law enforcement officer requesting the test, that a refusal to submit to the test must result in that person being placed out of service immediately for twenty-four hours and being disqualified from operating a commercial motor vehicle for not less than one year under Section 56-1-2110.
(D) If the person refuses testing, or submits to a test which discloses an alcohol concentration of four one-hundredths of one percent or more, the law enforcement officer shall submit a report to the Department of Public Safety certifying that the test was requested pursuant to subsection (A) and that the person refused to submit to testing, or submitted to a test which disclosed an alcohol concentration of four one-hundredths of one percent or more.
(E) Upon receipt of the report of a law enforcement officer submitted under subsection (D), the Department of Public Safety shall notify the department that the driver is disqualified from driving a commercial motor vehicle under Section 56-1-2110."
Name change
SECTION 1356. Section 56-1-2140 of the 1976 Code is amended to read:
"Section 56-1-2140. Within ten days after receiving a report of the conviction of a nonresident holder of a commercial driver license for a violation of state law or local ordinance relating to motor vehicle traffic control, other than a parking violation, committed in a commercial motor vehicle, the Department of Public Safety shall notify the driver licensing authority in the licensing state of the conviction."
Identification cards
SECTION 1357. Chapter 1, Title 56 of the 1976 Code is amended by adding:
"Article 15
Identifiction Card
Section 56-1-3350. Upon application by any person ten years of age or older who is a resident of South Carolina, the Motor Vehicle Division of the Department of Revenue and Taxation shall issue a special identification card as long as:
(1) the application is made on a form approved and furnished by the division; and
(2) the applicant presents to the person issuing the identification card a birth certificate or other evidence acceptable to the division of his name and date of birth.
The fee for the issuance of the special identification card is five dollars, and the identification card expires five years from the date of issuance. The renewal fee is also five dollars. Issuance and renewal fees are waived for indigent persons who are mentally ill, mentally retarded, homeless, or who are on public assistance as the sole source of income. As used in this section `indigent' means a person who is qualified for legal assistance which is paid for with public funds. For purposes of this section, a homeless person is an individual who lacks a fixed and regular nighttime residence or an individual who has a primary nighttime residence that is:
(a) a supervised publicly or privately operated shelter designed to provide temporary living accommodations, including congregated shelters, and transitional housing;
(b) an institution that provides a temporary residence for individuals intended to be institutionalized; or
(c) a public or private place not designed for, or ordinarily used as, regular sleeping accommodations for human beings.
The term does not include any individual imprisoned or otherwise detained pursuant to an act of Congress. Annually, the director of a facility which provides care or shelter to homeless persons must certify this fact to the Department of Revenue and Taxation. The department must maintain a list of facilities which are approved by the department, and only letters from the directors of these approved facilities are considered to comply with the provisions of this section. To have the issuance or renewal fee waived for an identification card, a homeless person must present a letter to the Department of Revenue and Taxation from the director of a facility that provides care or shelter to homeless persons certifying that the person named in the letter is homeless. The signature of the director must be notarized and the date of the letter may not be older than thirty days. The department may promulgate regulations to implement the provisions of this section.
Special identification cards issued to persons under the age of twenty-one must be marked, stamped, or printed to readily indicate that the person to whom the card is issued is under the age of twenty-one.
Section 56-1-3360. It is unlawful for any person to:
(1) alter a special identification card so as to provide false information on the card or to sell or issue a fictitious special identification card;
(2) use a special identification card not issued to the person, an altered special identification card, or a special identification card containing false information to defraud another or violate the law;
(3) to lend his special identification card to any person or knowingly permit its use by another.
Any person violating the provisions of this section is guilty of a misdemeanor and, upon conviction, must be fined not more than two hundred dollars or imprisoned for not more than thirty days.
Section 56-1-3370. The special identification card issued pursuant to this article shall be similar in size, shape, and design to a motor vehicle driver's license, including a color photograph of the person to whom it is issued. Provided, however, that the card shall be readily distinguishable from a driver's license by a difference in color, and there shall be printed on the face of such card a statement that the card does not enable the person to whom it is issued to operate a motor vehicle.
Section 56-1-3380. Any information obtained from an application for the issuance, renewal, or replacement of a special identification card shall be confidential and shall not be divulged to any person, association, corporation or organization, public or private, except to the legal guardian or attorney of the applicant, or to a person, association, corporation or organization named in writing by the applicant, his legal guardian or his attorney. Provided, however, that this restriction shall not prevent furnishing the application or any information thereon to a law enforcement agency.
Section 56-1-3390. The department shall promulgate rules and regulations deemed necessary for the effective implementation of this article and shall utilize the various communications media throughout the State to inform residents of the provisions of this article and promote and encourage the public to take advantage of its provisions.
Section 56-1-3400. Any person who shall use a false or fictitious name or give a fictitious address in any application for an identification card or renewal thereof, or knowingly make a false statement or conceal a material fact or otherwise commit a fraud in any such application, shall be fined not more than five hundred dollars or imprisoned for not more than six months."
Name change
SECTION 1358. Section 56-3-20(21) of the 1976 Code is amended to read:
"(21) `Department' means the Department of Revenue and Taxation acting directly or through its duly authorized officers and agents;"
Name change
SECTION 1359. Section 56-3-115 of the 1976 Code is amended to read:
"Section 56-3-115. The owner of a vehicle commonly known as a golf cart, if he has a valid driver's license, may obtain a permit from the department upon the payment of a fee of five dollars and proof of financial responsibility which permits him to operate the golf cart on a secondary highway or street within two miles of his residence during daylight hours only."
Name change
SECTION 1360. Section 56-3-250 of the 1976 Code is amended to read:
"Section 56-3-250. No vehicle shall be registered and licensed by the department unless a signed statement accompanies the application certifying that all county and municipal taxes legally due by the applicant on the vehicle concerned have been paid and if such vehicle is legally subject to being returned by the applicant for county and municipal taxes such return has been made; that the applicant is not delinquent in the payment of any motor vehicle taxes in this State, and that the address and county shown on the application for license is the true legal residence of the applicant. A transfer between members of the same family shall not, for the purpose of this section, be considered a bona fide purchase. Any person falsely certifying as required in this section shall have his driver's license suspended for a period of six months.
The provisions of this section shall not apply to any citizen of this State on active duty with the Armed Forces of the United States when the vehicle to be registered and licensed is operated for more than six months each year outside the boundaries of this State, nor to any motor vehicle subject to assessment for ad valorem tax purposes by the State Tax Commission."
Name change
SECTION 1361. Section 56-3-255 of the 1976 Code is amended to read:
"Section 56-3-255. The department shall require evidence of the payment of the use tax imposed by Section 4481 of the Internal Revenue Code of 1954 prior to issuing vehicle registration and plates for those vehicles for which the taxes are required."
Name change
SECTION 1362. Section 56-3-360 of the 1976 Code is amended to read:
"Section 56-3-360. The Department of Public Safety may suspend the registration of a vehicle whose theft or conversion is reported to it pursuant to Section 56-19-810 or Section 56-19-820."
Name change
SECTION 1363. Section 56-3-650 of the 1976 Code is amended to read:
"Section 56-3-650. In order for inter-city bus companies operating fleets both in inter and intra state commerce in South Carolina to more efficiently dispatch individual buses in such fleets from one state to another, any such inter-city bus company operating a fleet of ten or more buses of thirty or more passenger capacity each may comply with the license requirements of this chapter by paying an in lieu license fee to the department. Such fee shall be an amount equivalent to an annual fee of two hundred dollars per bus, with the number of buses or fractions thereof determined by dividing the company's total bus travel mileage in this State in any one license year by forty thousand miles. Such an inter-city bus company shall declare at the beginning of each license year prior to May first respectively of each year the mileage its fleet operated in this State during the preceding calendar year, and shall pay to the department a total annual license fee for all such buses computed in accordance with this section. Any bus company licensed pursuant to this section must retain and hold, subject to audit by the department, for a period of at least four years all records used in computing the total mileage operated in the State during each calendar year. Bus companies electing to license under this provision shall not be required to display license plates as otherwise required by this chapter on the buses operated in South Carolina, but they shall have the option of displaying license plates on buses where such license plates are specifically identified with specific buses."
Name change
SECTION 1364. Section 56-3-790 of the 1976 Code is amended to read:
"Section 56-3-790. The department shall issue a license upon the payment of a five dollar fee to any chartered volunteer rescue league in this State for any motor vehicle owned and operated by it solely for rescue work without charge."
Name change
SECTION 1365. Section 56-3-860 of the 1976 Code is amended to read:
"Section 56-3-860. The department may, in the discretion of the director of the department, accept uncertified checks of an applicant-owner in payment for license fees charged for the issuance of license plates for motor vehicles, trailers, semitrailers, pole trailers and motor vehicle dealers."
Crediting of fees and penalties
SECTION 1366. Section 56-3-910 of the 1976 Code is amended to read:
"Section 56-3-910. All fees and penalties collected by the department under the provisions of this chapter shall be placed in the state general fund."
Name change
SECTION 1367. Section 56-3-1150 of the 1976 Code is amended to read:
"Section 56-3-1150. A member or former member of the armed forces who was a prisoner of war (POW) in World War I, World War II, the Korean Conflict, or the Vietnam Conflict and who is a legal resident of this State may make application for registration and licensing of his personal motor vehicle or truck, not exceeding three-quarter ton, to the department without paying the usual fee for registration and licensing of a vehicle of similar type. The department shall issue the license plate or the revalidation sticker upon receipt of the application made under oath and in a form required by the department. The provisions of this section do not apply if the former POW applies for a special personalized motor vehicle license plate under the provisions of Section 56-3-2010. The department may issue or transfer a special POW motor vehicle license plate to a vehicle owned or leased by a former POW or his surviving spouse. A former POW who is issued a license plate under the provisions of this section or surviving spouse is not required to reapply so long as the former POW or surviving spouse owns the vehicle for which the plate is issued. The plate shall bear the words `South Carolina', the number, and prefix `POW'.
The surviving spouse of a former POW after notice to the department may retain the plate and is entitled to all the privileges of the POW for the lifetime or until remarriage of the surviving spouse."
Name change
SECTION 1368. Section 56-3-1160 of the 1976 Code is amended to read:
"Section 56-3-1160. The department shall promulgate such regulations as may be necessary to effectuate the provisions of this article."
Name change
SECTION 1369. Section 56-3-1330 of the 1976 Code is amended to read:
"Section 56-3-1330. The Department of Public Safety (department) may suspend, cancel, or revoke the registration and license of a vehicle, or the registration card, license plate, revalidation sticker, or other document issued by the department as authorized under this chapter in any of the following events when the:
(1) department determines to its satisfaction that such registration and license, registration card, license plate, revalidation sticker, or other document was fraudulently or erroneously issued;
(2) department determines to its satisfaction that a registered and licensed vehicle is mechanically unsafe or unfit to be operated or moved upon a highway;
(3) vehicle registered and licensed has been dismantled or wrecked;
(4) department determines that the required fee has not been paid and is not paid upon reasonable notice and demand;
(5) registration card, license plate, revalidation sticker, or other document is knowingly displayed upon a vehicle other than the one for which it was issued;
(6) department determines to its satisfaction that the owner has committed any offense under this chapter involving such registration card, license plate, revalidation sticker, or other document;
(7) department is so authorized under any other provisions of law.
The Circuit Courts of this State shall have jurisdiction to review actions of the department that suspend, cancel, or revoke the registration and license of a vehicle, or the registration card, license plate, revalidation sticker, or other document, when petitioned by a resident of this State. The decision of the court shall be binding upon the department or Department of Revenue and Taxation and the petitioner."
Vehicle registration suspension
SECTION 1370. Section 56-3-1340 of the 1976 Code is amended to read:
"Section 56-3-1340. The suspension of a license issued by the department to any person to operate a motor vehicle on the highways of the State shall not serve to automatically suspend the registration or license plates."
Name change
SECTION 1371. Section 56-3-1710 of the 1976 Code is amended to read:
"Section 56-3-1710. The department shall design and supply, at an appropriate fee, a special license plate, or supplemental plate or attachment, for use on all publicly owned motor vehicles operated by any department or institution of the State of South Carolina, or any of its political subdivisions. It shall be unlawful for any such publicly owned vehicle to be operated in the State of South Carolina that does not carry such official emblem or marker. Provided, however, that this provision shall not apply to the automobile supplied for the Governor's personal use, automobiles supplied to law enforcement officers, when in the opinion of the chief of the South Carolina Law Enforcement Division it is advisable that such automobiles not be so marked, nor to automobiles supplied to statewide elective state officials."
Name change
SECTION 1372. Section 56-3-1750 of the 1976 Code is amended to read:
"Section 56-3-1750. The department may issue a special motor vehicle license plate to active members of the United States Air Force Reserve, United States Army Reserve, United States Coast Guard Reserve, United States Marine Corps Reserve, or United States Navy Reserve who are residents of the State for a private motor vehicle registered in their respective names. The annual fee for the special license plate is the regular motor vehicle registration fee plus the personalized license plate fee provided by Section 56-3-2020 and only one plate may be issued to any person."
Name change
SECTION 1373. Section 56-3-1850 of the 1976 Code is amended to read:
"Section 56-3-1850. The department shall provide, upon proper application being made, a distinctive permanent license plate to any resident of the State who is a recipient of the Medal of Honor, for use on a private motor vehicle registered in the recipient's name. There shall be no fee for such license plate but no recipient shall receive a plate for more than one vehicle."
Special tags for the handicapped
SECTION 1374. Section 56-3-1910 of the 1976 Code is amended to read:
"Section 56-3-1910. Upon payment of the regular motor vehicle license fee, the department may issue a license tag with a special number or identification indicating that the tag was issued to a person (a) disabled by an impairment in the use of one or more limbs and required to use a wheelchair or (b) disabled by an impairment in mobility, but otherwise qualified for a driver's license as determined by the department. Each application for the license must be accompanied by the certificate of a licensed physician as defined in Section 40-47-5 as to the permanency of limb impairment or as to the severity or the permanency of mobility impairment.
The special license tag authorized by this section may also be issued for a vehicle of special design and equipment designed to transport a disabled person who meets the requirements of this section if the vehicle is owned and titled in the name of the disabled person or in the name of a member of his immediate family or for a vehicle used by an agency, organization, or facility that is designed to transport a handicapped or disabled person if the vehicle is titled in the name of the agency, organization, or facility. Proof that the agency, organization, or facility transports a handicapped or disabled person must be in a manner prescribed by the department. A certificate from a licensed physician is not required to apply for the special license tag."
Name change
SECTION 1375. Section 56-3-1950(1) of the 1976 Code is amended to read:
"(1) `Department' means the Department of Revenue and Taxation."
Handicapped parking privilege
SECTION 1376. Section 56-3-1960 of the 1976 Code is amended to read:
"Section 56-3-1960. (1) Any person who is handicapped as defined in this article must be allowed to park in metered or timed parking places without being subject to parking fees or fines. This section has no application to those areas or during those times in which the stopping, parking, or standing of all vehicles is prohibited or which are reserved for special types of vehicles. As a condition to this privilege, a vehicle must display a distinguishing license plate which must be issued by the department, pursuant to this section, Section 56-3-1910, or Section 56-3-1110, for vehicles registered to the disabled person. The license plate must be issued for the usual fee applicable to standard license plates, except that a person who qualifies for a license plate under this section and also qualifies as a disabled veteran under Section 56-3-1110 must be issued the license plate provided for in this section free of charge. Application must be made on a form prescribed by the department and applicants may apply by mail. Each application must be accompanied by a certificate from a licensed physician as defined in Section 40-47-5 that the applicant is handicapped as defined in this article and that the handicap is permanent. No applicant may be denied a license plate if the completed application is accompanied by a certificate from a licensed physician as defined in Section 40-47-5 as required by this subsection.
(2) An agency, organization, or facility that transports a disabled or handicapped person or any person who is handicapped as defined in this article may apply to the department for issuance of a temporary or permanent distinguishing placard to be designed by the department. The department, if necessary, may design another distinguishing placard for an agency, organization, or facility that is eligible for a placard, however, all placards must be at least three inches by nine and one-half inches in size and must hang from the rearview mirror of a vehicle or be displayed on the driver's side dashboard when there is no hanging apparatus. The placard must be used on vehicles transporting the disabled person in lieu of the distinguishing license plate issued pursuant to subsection (1) of this section. When the placard is displayed on the driver's side dashboard of a vehicle, all parking rights and privileges extended to vehicles displaying a distinguishing license plate issued pursuant to subsection (1) of this section are applicable to the vehicle. The department shall establish procedures for the issuance of distinguishing placards, and the procedures shall permit applicants to apply by mail. Each application must be accompanied by a certificate from a licensed physician as defined in Section 40-47-5 that the applicant is handicapped as defined in this article, except that a physician's certificate is not required for applications by an agency, organization, or facility which must include sufficient documentation as may be prescribed by the department that the applying agency, organization, or facility transports handicapped or disabled persons. The physician shall state on the certificate whether the applicant is handicapped temporarily or permanently. If the applicant is temporarily handicapped, the physician shall state the length of time for which the applicant is temporarily handicapped. A placard issued for a temporary disability is valid only for the anticipated length of time of the disability specified by the physician in the certificate. No applicant may be denied a placard if the applicant follows the procedures established by the department and if the completed application is accompanied by a certificate from a licensed physician as defined in Section 40-47-5, as required by this subsection. The department shall charge a fee of one dollar a placard and may issue two placards to an individual applicant upon request. An agency, organization, or facility may receive a placard for each vehicle registered upon payment of the appropriate fees.
The permanent placards may be issued and renewed only for a maximum period of four years renewable on the owner's birth date; however, placards issued to an agency, organization, or facility must be renewed every four years. The placards must be of a color as determined by the department which is easily recognizable by law enforcement personnel. The placard shall indicate on its face when it expires.
(3) A vehicle displaying an out-of-state handicapped license plate or placard or other evidence of handicap issued by the appropriate authority as determined by the department is entitled to the parking privileges provided for in this section."
Name change
SECTION 1377. Section 56-3-1971 of the 1976 Code is amended to read:
"Section 56-3-1971. All law enforcement officers issuing tickets on public and private property and state law enforcement division licensed security officers of shopping centers and business and commercial establishments, which provide parking spaces designated for handicapped persons, are authorized to issue a uniform parking violations ticket to the vehicle for violations of the prescribed use of the parking spaces. The uniform parking violations ticket shall provide a means for tracking violators by tag number and recording the violations with the division of motor vehicles.
The procedures governing the issuance, form, and content of the uniform parking violations ticket must be prescribed by the Department of Public Safety and approved by the Attorney General.
Upon conviction for a violation of Section 56-3-1970, five dollars of the fine assessed must be remitted to the Department of Public Safety for administration and implementation costs."
Name change
SECTION 1378. Section 56-3-1972 of the 1976 Code is amended to read:
"Section 56-3-1972. For purposes of this article, a uniform parking violations ticket shall consist of five copies, one of which must be blue and placed upon the vehicle parked in violation of this article; one of which must be yellow and must be dispatched to the Department of Public Safety for its records; one of which must be white and must be maintained by the originating agency; one of which must be green and must be retained by the trial officer for his records; and one of which must be pink and must be dispatched by the issuing agency to the Department of Public Safety for purposes of audit. Each ticket shall have a unique identifying number."
Name change
SECTION 1379. Section 56-3-1973 of the 1976 Code is amended to read:
"Section 56-3-1973. The Department of Public Safety shall have the uniform parking violations ticket printed. Law enforcement and security agencies shall order tickets from the Department of Public Safety and shall record the identifying numbers of the tickets received by them. The cost of the tickets must be paid by the law enforcement or security agency. The audit copy and the Department of Public Safety record's copy must be forwarded to the Department of Public Safety within thirty days of the disposition of the case by final trial court action. The head of each law enforcement agency is responsible for forwarding the audit copies and for conducting an annual inventory on December thirty-first of all tickets received but not yet disposed of by final trial court action and forwarding the results of the inventory on a form prescribed by the Department of Public Safety to the Department of Public Safety within ten days of the completion of the inventory."
Name change
SECTION 1380. Section 56-3-1974 of the 1976 Code is amended to read:
"Section 56-3-1974. A person who wilfully and intentionally violates the provisions of Section 56-3-1973 is guilty of a misdemeanor and, upon conviction, must be fined not less than two hundred fifty dollars nor more than fifteen hundred dollars or imprisoned not more than six months, or both, for each ticket unaccounted for or for each failure to timely forward the issuing agency's copy or Department of Public Safety record's copy or audit copy of a ticket. If the failure to account for a ticket or the failure to timely forward the issuing agency's copy or the Department of Public Safety record's or audit copy of the ticket is inadvertent or unintentional, the misuse is triable in magistrate's court and, upon conviction, the person must be fined not more than one hundred dollars. The service of the uniform parking violations ticket vests all traffic, recorder's, and magistrate's courts with jurisdiction to hear and dispose of the charge for which the ticket was issued and served."
Name change
SECTION 1381. Section 56-3-2010 of the 1976 Code is amended to read:
"Section 56-3-2010. The department shall provide, upon proper application being made, special personalized motor vehicle license plates to the owner of a private passenger motor vehicle, trucks having a rated capacity of not more than five thousand pounds empty weight or not more than eight thousand pounds gross vehicle weight, and motorcycles. The personalized plates must be of the design and bear the letters and numerals as the department prescribes, but there may be no duplication of any registration plates, except that South Carolina members of the United States Congress or members of South Carolina General Assembly are allowed to purchase a maximum of the original and two duplicate registration plates. The department, in its discretion, may refuse the issue of letter combinations which may carry connotations offensive to good taste and decency and may not assign to any person not holding the relevant office any letters or numerals denoting the holder to have a public office.
Private passenger motor vehicles and trucks meeting the above specifications must be assigned an annual registration which expires on a staggered monthly basis. In the case where a current vehicle license plate is currently displayed, the owner of the vehicle may make application for personalized license plates two months in advance of the current registration expiration. A sticker reflecting the month of expiration of registration must be issued and affixed in the space provided on the license plate assigned to the vehicle. A personalized license plate issued to a motorcycle expires November thirtieth of each year. Every personalized license plate issued to members of the General Assembly and members of licensed state commissions and boards expires on January thirty-first of each year. Every vehicle registration must be renewed annually upon application by the owner and by payment of the fee required by law to take effect on the first day of the month following the expiration of the registration to be renewed."
Crediting of fees
SECTION 1382. Section 56-3-2020 of the 1976 Code is amended to read:
"Section 56-3-2020. The fee for the issue of special personalized motor vehicle license plates shall be fifteen dollars each year, which shall be in addition to the regular motor vehicle registration fee as set forth in Article 5, Chapter 3, of this title and such revenue shall be deposited to the state general fund. The fee is due and payable at the time of the application. The department may not refund the fee if the personalized plate has already been manufactured."
Name change
SECTION 1383. Section 56-3-2060 of the 1976 Code is amended to read:
"Section 56-3-2060. The department may issue special motor vehicle license plates to members of foreign consulates for private motor vehicles registered in their respective names. The annual fee for such special license plates shall be the same as the fee provided for in Section 56-3-2020 of the 1976 Code, as last amended and only one such plate shall be issued to any person."
Name change
SECTION 1384. Section 56-3-2150 of the 1976 Code is amended to read:
"Section 56-3-2150. The department may issue special motor vehicle license plates to members of municipal and county councils and to county coroners of this State for private motor vehicles registered in their names. The annual fee for these special license plates is the same as the fee provided for in Section 56-3-2020 and only one plate may be issued to any one councilman or coroner. The plate must be issued or revalidated annually for the regular registration and licensing year."
Name change
SECTION 1385. Section 56-3-2210 of the 1976 Code is amended to read:
"Section 56-3-2210. Every motor vehicle as herein defined which is over thirty years old, is owned solely as a collector's item and is used for participation in club activities, exhibits, tours, parades and similar uses, but in no event used for general transportation, may be classified by the department as an antique motor vehicle."
Name change
SECTION 1386. Section 56-3-2230(a) of the 1976 Code is amended to read:
"(a) Every motorcycle over twenty-five years old, which is owned solely as a collector's item and is used for participation in club activities, exhibits, tours, parades and similar uses, but is not used for general transportation, may be classified by the department as an antique motorcycle."
Name change
SECTION 1387. Section 56-3-2250 of the 1976 Code is amended to read:
"Section 56-3-2250. The department may provide, upon request, a sample motor vehicle license plate which shall not be displayed on any vehicle registered or required to be registered in this State. Any person displaying such plate is guilty of a misdemeanor and, upon conviction, must be fined not more than one hundred dollars or be imprisoned for not more than thirty days. The license plate shall be of the same size and general design of regular motor vehicle license plates and the fee for issuance of such plate shall be ten dollars. Provided, that the word `sample' shall be imprinted on the license plate."
Name change
SECTION 1388. The first paragraph of Section 56-3-2320 of the 1976 Code is amended to read:
"The department may issue to a duly licensed motor vehicle dealer or wholesaler, upon application being made and the required fee being paid to the department, dealer or wholesaler license plates. The license plates, notwithstanding any provision of this chapter to the contrary, may be used exclusively on motor vehicles owned by the dealer or wholesaler. Dealer or wholesaler plates may not be used to operate wreckers in use by the dealer or wholesaler, nor to operate vehicles owned by the dealer and wholesaler that are leased or rented by the public. No dealer or wholesaler plates may be issued by the department unless the dealer or wholesaler furnishes proof in a form acceptable to the department that he has a retail business license as required by Chapter 36 of Title 12 or wholesaler's certificate of exemption from the Department of Revenue and Taxation and has made at least ten sales of motor vehicles in the twelve months preceding his application for a dealer or wholesaler plate. The sales requirement may be waived by the department if the dealer or wholesaler has been licensed for less than one year."
Name change
SECTION 1389. Section 56-3-2600 of the 1976 Code is amended to read:
"Section 56-3-2600. The department upon request and subject to the limitations and conditions hereinafter set forth shall provide temporary license plates and registration cards designed by the department to nonresidents of South Carolina and to licensed motor vehicle dealers who apply for such plates and cards. The fee for each set of license plates and registration cards shall be ten dollars. Application therefor shall be made to the department on forms prescribed and furnished by the department. Dealers, subject to the limitations and conditions hereinafter set forth, may issue such temporary license plates to owners of vehicles which are to be permanently licensed in a state other than South Carolina."
Name change
SECTION 1390. Section 56-3-2710 of the 1976 Code is amended to read:
"Section 56-3-2710. The department upon request and subject to the limitations and conditions set forth in this article shall provide temporary license plates and registration certificates to a corporation for motor vehicles used solely for research and development."
Name change
SECTION 1391. Section 56-3-2810 of the 1976 Code is amended to read:
"Section 56-3-2810. The department shall issue special motor vehicle license plates to volunteer firemen who request them in the manner provided in this article and who are residents of the State for private motor vehicles registered in their respective names. For the purposes of this article the term `volunteer firemen' means members of organized units providing fire protection without compensation being paid to the members of the units for the service provided and whose membership is certified to the municipal clerk or chairman of the council of the municipality or county in which their unit is based by the chief officer of the unit concerned. The cost of the special license plate as determined by the department must be paid annually by the requesting volunteer fireman and only one license plate may be issued to any one volunteer fireman. The plate must be issued upon application being made therefor, in a manner and upon forms which must be prescribed by the department, and upon approval of the application by the department."
Name change
SECTION 1392. Section 56-3-3310 of the 1976 Code is amended to read:
"Section 56-3-3310. The department may issue a special motor vehicle license plate to a recipient of the Purple Heart. The annual fee for the special license plate is the same as the fee provided for in Section 56-3-2020 and only one plate may be issued to any person. The application for a special plate must include proof that the applicant is a recipient of the Purple Heart."
Name change
SECTION 1393. Section 56-3-3710(A) of the 1976 Code is amended to read:
"(A) The department may issue special motor vehicle license plates to owners of private passenger-carrying motor vehicles or light pickups having an empty weight of five thousand pounds or less and a gross weight of eight thousand pounds or less registered in their names which may have imprinted on the plate any emblem, seal, or other symbol the department considers appropriate of a public college or university, or independent institution of higher learning defined in Section 59-113-50, located in this State. A school may submit to the department for its approval the emblem, seal, or other symbol it desires to be used for its respective special license plate. A school also may request a change in the emblem, seal, or other symbol not more than once every five years. The fee for this special license plate is thirty-five dollars each year which is in addition to the regular motor vehicle registration fee as set forth in Article 5, Chapter 3 of this title. This special license plate must be of the same size and general design of regular motor vehicle license plates. The special license plates must be issued or revalidated for an annual period which expires twelve months from the month they are issued."
Name change
SECTION 1394. Section 56-3-4310(A) of the 1976 Code is amended to read:
"(A) The department shall issue a special motor vehicle license plate to any retired member of the United States Armed Forces who is a resident of this State in accordance with the provisions of this section."
Special State Guard license tag
SECTION 1395. Chapter 3, Title 56 of the 1976 Code is amended by adding:
"Article 47
Special License Plates--
Members of the South Carolina State Guard
Section 56-3-4710. (A) The Department of Revenue and Taxation may issue a special motor vehicle license plate to a member of the South Carolina State Guard who is a resident of the State for a private passenger motor vehicle or truck, having a rated capacity of one ton or less, registered in the member's name.
(B) The annual fee for the special license plate is the regular motor vehicle registration fee plus the personalized license plate fee provided by Section 56-3-2020. Only one plate may be issued to a person. The revenue from the issuance of plates under this article must be deposited in the manner provided for under Section 56-3-2020. The department shall issue the license plate or the revalidation sticker upon receipt of an application made under oath and in the form required by the department.
(C) A person who is issued a license plate under the provisions of this article is not required to reapply so long as that person owns the vehicle for which the plate is issued or is authorized pursuant to this article. The provisions of this article do not apply if the member applies for a special personalized motor vehicle license plate under the provisions of Section 56-3-2010.
Section 56-3-4720. The special license plate must be of the same size and general design as regular motor vehicle license plates. The department shall imprint the special license plates with the words `South Carolina State Guard' together with numbers the department may determine necessary or expedient. The licensing period for the plate is on an annual basis and expires twelve months from the month it is issued.
Section 56-3-4730. A license plate issued pursuant to this article may be transferred to another vehicle of the same weight class owned by the same person upon application being made and approved by the department. It is unlawful for a person to whom the plate has been issued knowingly to permit it to be displayed on a vehicle except the one authorized by the department.
Section 56-3-4740. The provisions of this article do not affect the registration and licensing of motor vehicles as required by other provisions of this chapter but are cumulative to those other provisions. A person violating the provisions of this article or a person who: (1) fraudulently gives false or fictitious information in an application for a special license plate, as authorized in this article, (2) conceals a material fact, or (3) otherwise commits fraud in the application or in the use of a special license plate issued under this article is guilty of a misdemeanor and, upon conviction, must be fined not more than one hundred dollars or imprisoned not more than thirty days, or both."
Name change
SECTION 1396. Section 56-3-4910(A) of the 1976 Code is amended to read:
"(A) The department shall issue special motor vehicle license plates to active and retired South Carolina firefighters who request them in the manner provided in this article and who are residents of the State for private motor vehicles registered in their respective names. The special license plates, which must be of the same size and general design of regular motor vehicle license plates, must be imprinted with the words `SOUTH CAROLINA FIREFIGHTER' together with a fire service emblem and with numbers as the department may determine. The plates are for annual periods as provided by law. The fee for this special license plate is thirty-five dollars each year which is in addition to the regular motor vehicle registration fee as set forth in Article 5, Chapter 3 of this title."
Name change
SECTION 1397. Section 56-3-5920 of the 1976 Code is amended to read:
"Section 56-3-5920. The department shall design a Pearl Harbor survivor license plate for motor vehicles. The license plates issued pursuant to this article must be numbered consecutively and contain the words `Pearl Harbor Survivor'."
Department named changed; agency to mail notice
SECTION 1398. Section 56-5-60 of the 1976 Code is amended to read:
"Section 56-5-60. The envelope in which a notice required by law to be mailed by the department or the Department of Public Safety is mailed, other than by registered or certified mail, must have printed on it in bold letters `Please Forward'."
Department name changed to Department of Public Safety
SECTION 1399. Section 56-5-370 of the 1976 Code is amended to read:
"Section 56-5-370. `Department' for the purpose of this chapter means the Department of Public Safety acting directly or through its duly authorized officers and agents."
Department name changed to Department of Transportation
SECTION 1400. Section 56-5-910 of the 1976 Code is amended to read:
"Section 56-5-910. No local authority shall erect or maintain any stop sign or traffic-control signal at any location so as to require the traffic on any state highway to stop before entering or crossing any intersecting highway unless approval in writing has first been obtained from the Department of Transportation."
Department name changed to Department of Transportation
SECTION 1401. Section 56-5-920 of the 1976 Code is amended to read:
"Section 56-5-920. The Department of Transportation may adopt a manual of standards and specifications for a uniform system of traffic-control devices, consistent with the provisions of this chapter, for use upon highways and streets within this State."
Department name changed to Department of Transportation
SECTION 1402. Section 56-5-930 of the 1976 Code is amended to read:
"Section 56-5-930. The Department of Transportation may place and maintain such traffic-control devices, conforming to its manual and specifications, upon all state highways as it shall deem necessary to indicate and to carry out the provisions of this chapter or to regulate, warn or guide traffic. No local authority shall place or maintain any traffic-control devices upon any state highway without having first obtained the written approval of the Department of Transportation."
Department name changed to Department of Transportation
SECTION 1403. Section 56-5-935 of the 1976 Code is amended to read:
"Section 56-5-935. The United States Department of Energy is authorized to place and maintain traffic control devices upon roads within the confines of the lands in Aiken, Allendale, and Barnwell counties acquired or to be acquired by the United States Government. The Department of Energy is not required to obtain written approval of the Department of Transportation as provided in Sections 56-5-910 and 56-5-930.
The driver of a vehicle must obey the instruction of any traffic control device or sign placed as provided in this section unless otherwise directed by a traffic or police officer, subject to the exceptions granted the driver of an authorized emergency vehicle in this chapter."
State highway fund changed to state general fund
SECTION 1404. Section 56-5-1520(f) of the 1976 Code is amended to read:
"(f) Five dollars of the fines listed in subsection (d)(3) and (4) must be credited to the state general fund. In expending the funds credited to the state general fund under subsection (d), the department first shall consider the need for additional highway patrolmen."
Department name changed to Department of Transportation
SECTION 1405. Section 56-5-1530 of the 1976 Code is amended to read:
"Section 56-5-1530. (a) Establishing speed zones. Whenever the Department of Transportation shall determine upon the basis of an engineering and traffic investigation that any maximum speed hereinbefore set forth is greater or less than is reasonable or safe under the conditions found to exist at any intersection or other place or upon any part of the state highway system, the Department of Transportation may determine and declare a reasonable and safe maximum limit thereat, which shall be effective when appropriate signs giving notice thereof are erected. Such maximum speed limit may be declared to be effective at all times or at such times as are indicated upon such signs; and differing limits may be established for different times of day, different types of vehicles, varying weather conditions, and other factors bearing on safe speeds, which shall be effective when posted upon appropriate fixed or variable signs.
(b) Setting maximum limits in state highway extensions in urban districts. The Department of Transportation shall determine the proper maximum speed for all state primary highway extensions into and through urban districts and shall declare a reasonable and safe maximum speed limit thereon which may be greater or less than the maximum speed otherwise permitted under this article for an urban district and such maximum speed limits shall be effective at all times during hours of darkness and at other times as may be determined when appropriate official signs giving notice thereof are erected upon such street or highway."
Department name changed to Department of Transportation
SECTION 1406. Section 56-5-1540(d) of the 1976 Code is amended to read:
"(d) Approval of altered limits by Department of Transportation. Any alteration of maximum limits on state highways or extensions thereof in a municipality by local authorities is not effective until the alteration has been approved by the Department of Transportation."
Department name changed to Department of Transportation
SECTION 1407. Section 56-5-1560(b) of the 1976 Code is amended to read:
"(b) Establishing minimum speed zones; signs. Whenever the Department of Transportation or local authorities within their respective jurisdictions determine on the basis of an engineering and traffic investigation that slow speeds on any part of a highway consistently impede the normal and reasonable movement of traffic, the Department of Transportation or local authority may determine and declare a minimum speed limit below which no person shall drive a vehicle except when necessary for safe operation or in compliance with law, when appropriate signs giving notice thereof are erected along the part of the highway for which a minimum speed limit is established. Also any minimum speed limit adopted by a municipality for a section of the state highway within the municipality shall not be effective until such minimum speed has been approved by the Department of Transportation."
Department name changed to Department of Transportation
SECTION 1408. Items (d) and (e) of Section 56-5-1570 of the 1976 Code are amended to read:
"(d) Same; establishing safe maximum limit. The Department of Transportation upon request from any local authority shall, or upon its own initiative may, conduct an investigation of any bridge or other elevated structure constituting a part of a highway, and if it finds that such structure cannot with safety to itself withstand vehicles traveling at the speed otherwise permissible under this chapter, the Department of Transportation shall determine and declare the maximum speed of vehicles which such structure can safely withstand, and shall cause or permit suitable signs stating such maximum speed to be erected and maintained before each end of such structure.
(e) Same; proof of limit and signs conclusive evidence of safe speed. Upon the trial of any person charged with a violation of this section, proof of determination of the maximum speed by the Department of Transportation and the existence of such signs shall constitute conclusive evidence of the maximum speed which can be maintained with safety to such bridge or structure."
Department name changed to Department of Transportation
SECTION 1409. Section 56-5-1890(a) of the 1976 Code is amended to read:
"(a) The Department of Transportation and local authorities may determine those portions of any highway under their respective jurisdictions where overtaking and passing or driving on the left of the roadway would be especially hazardous and may by appropriate signs or markings on the roadway indicate the beginning and end of such zones and when such signs or markings are in place and clearly visible to an ordinarily observant person every driver of a vehicle shall obey the directions thereof."
Department name changed to Department of Transportation
SECTION 1410. Section 56-5-1910(a) of the 1976 Code is amended to read:
"(a) The Department of Transportation and local authorities with respect to highways under their respective jurisdictions may designate any highway, roadway, part of a roadway or specific lanes upon which vehicular traffic shall proceed in one direction at all or such times as shall be indicated by official traffic-control devices."
Commission changed to Commission of the Department of Transportation
SECTION 1411. Section 56-5-1980(a) of the 1976 Code is amended to read:
"(a) The Commission of the Department of Transportation by resolution or order entered in its minutes, and local authorities by ordinance, may regulate or prohibit the use of any controlled-access roadway or highway within their respective jurisdictions by any class or kind of traffic which is found to be incompatible with the normal and safe movement of traffic."
Department name changed to Department of Transportation
SECTION 1412. Section 56-5-2120(c) of the 1976 Code is amended to read:
"(c) The Department of Transportation and local authorities in their respective jurisdictions may cause official traffic-control devices to be placed and thereby require and direct that a different course from that specified in this section be traveled by turning vehicles and when such devices are so placed no driver shall turn a vehicle other than as directed and required by such devices."
Department name changed to Department of Transportation
SECTION 1413. Section 56-5-2330(a) of the 1976 Code is amended to read:
"(a) Preferential right-of-way may be indicated by stop signs or yield signs as authorized by the Department of Transportation or local authorities."
Department name changed to Department of Transportation
SECTION 1414. Section 56-5-2540 of the 1976 Code is amended to read:
"Section 56-5-2540. The Department of Transportation with respect to state highways may place signs prohibiting or restricting the stopping, standing or parking of vehicles on any highway where, in its judgment, such stopping, standing or parking is deemed by the Department of Transportation to be hazardous to those using the highway or where the stopping, standing or parking of vehicles would unduly interfere with the free movement of traffic thereon. Such signs shall be official signs and no person shall stop, stand or park any vehicle in violation of the restrictions stated on such signs."
Department name changed to Department of Transportation
SECTION 1415. Section 56-5-2550 of the 1976 Code is amended to read:
"Section 56-5-2550. The Department of Transportation with respect to state highways and local authorities with respect to highways under their jurisdiction may permit parking of vehicles with the left-hand wheels adjacent to and within eighteen inches of the left-hand curb on one-way roadways and may permit angle parking on any roadway of sufficient width to permit angle parking without interfering with the free movement of traffic. But local authorities shall not permit such left-hand parking on one-way roadways nor angle parking on state highways except upon written approval of the Department of Transportation."
Department name changed to Department of Revenue and Taxation
SECTION 1416. Section 56-5-2585 of the 1976 Code is amended to read:
"Section 56-5-2585. Disabled veterans shall be exempt from the payment of municipal parking meter fees when their vehicles bear a disabled veteran's license plate issued by the Department of Revenue and Taxation."
Department named changed to Department of Transportation
SECTION 1417. Section 56-5-2715 of the 1976 Code is amended to read:
"Section 56-5-2715. The Department of Transportation, and local authorities with the approval of the Department of Transportation, may designate particularly dangerous highway grade crossings of railroads and erect stop signs thereat. When such signs are erected, the driver of any vehicle shall stop within fifty feet, but not less than fifteen feet, from the nearest rail of the railroad and shall proceed only upon exercising due care."
Name change
SECTION 1418. Section 56-5-2730 of the 1976 Code is amended to read:
"Section 56-5-2730. The Department of Transportation with reference to state highways and local authorities with reference to other highways under their jurisdiction may designate through highways and erect stop signs at specified entrances thereto or may designate any intersection as a stop intersection and erect like signs at one or more entrances to such intersection. Every stop sign shall be erected as near as practicable to the nearest line of the crosswalk on the near side of the intersection or, if there is no crosswalk, then as close as practicable to the nearest line of the roadway."
Name change
SECTION 1419. Section 56-5-2945(B) of the 1976 Code is amended to read:
"(B) As used in this section, `great bodily injury' means bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.
The department shall suspend the driver's license of any person who is convicted or who receives sentence upon a plea of guilty or nolo contendere pursuant to this section for a period to include any term of imprisonment plus three years."
Name change
SECTION 1420. Items (d) and (f) of Section 56-5-2950 of the 1976 Code are amended to read:
"(d) If a person under arrest refuses, upon the request of a law enforcement officer, to submit to chemical tests as provided in subsection (a) of this section, none may be given, but the department, on the basis of a report of the law enforcement officer that the arrested person was operating a motor vehicle in this State while under the influence of alcohol, drugs, or a combination of them and that the person had refused to submit to the tests shall suspend his license or permit to drive, or any nonresident operating privilege for a period of ninety days. If the person is a resident without a license or permit to operate a motor vehicle in this State, the department shall deny to the person the issuance of a license or permit for a period of ninety days after the date of the alleged violation. The ninety-day period of suspension begins with the day after the date of the notice required to be given, unless a hearing is requested as provided, in which case the ninety-day period begins with the day after the date of the order sustaining the suspension or denial of issuance. The report of the arresting officer must include what grounds he had for believing that the arrested person had been operating a motor vehicle in this State while under the influence of alcohol, drugs, or a combination of them. If the arrested person took the chemical breath test but refused to provide a blood or urine sample, the report of the arresting officer must include what were his grounds for believing that the arrested person was under the influence of drugs other than alcohol. If a person who refuses, upon the request of a law enforcement officer, to submit to chemical tests as provided in subsection (a) of this section, pleads guilty or nolo contendere to, or forfeits bond for a first offense violation of Section 56-5-2930, within thirty days of arrest, the period of the suspension of driving privileges under this section must be canceled and any suspension of driving privileges under Section 56-5-2990 for a first conviction may not exceed six months.
(f) When it is finally determined under the procedures of this section that a nonresident's privilege to operate a motor vehicle in this State has been suspended, the department shall give information in writing of the action taken to the motor vehicle administrator of the state of the person's residence and of any state in which he has a license."
Name change
SECTION 1421. Section 56-5-2990 of the 1976 Code is amended to read:
"Section 56-5-2990. The department shall suspend the driver's license of any person who is convicted, receives sentence upon a plea of guilty or of nolo contendere, or forfeits bail posted for the violation of Section 56-5-2930 or for the violation of any other law or ordinance of this State or of any municipality of this State that prohibits any person from operating a motor vehicle while under the influence of intoxicating liquor, drugs, or narcotics for six months for the first conviction, plea of guilty or of nolo contendere, or forfeiture of bail, one year for the second conviction, plea of guilty or of nolo contendere, or forfeiture of bail, two years for the third offense, three years for the fourth offense, and a permanent revocation of the driver's license for fifth and subsequent offenses. Only those violations which occurred within ten years including and immediately preceding the date of the last violation shall constitute prior violations within the meaning of this section. Any person whose license is revoked following conviction for a fifth offense as provided in this section is forever barred from being issued any license by the Department of Revenue and Taxation to operate a motor vehicle.
Any person whose license is suspended under the provisions of this section must be notified of suspension by the department of the requirement to be evaluated by and successfully complete an Alcohol and Drug Safety Action Program certified by the South Carolina Commission on Alcohol and Drug Abuse prior to reinstatement of the license. An assessment of the degree and kind of alcohol and drug abuse problem, if any, of the applicant must be prepared and a plan of education or treatment or both must be developed based upon the assessment. Entry into and successful completion of the services, if such services are necessary, recommended in the plan of education or treatment or both developed for the applicant is a mandatory requirement of the restoration of driving privileges to the applicant. The applicant shall bear the cost of the services to be determined by the administering agency and approved by the Commission on Alcohol and Drug Abuse. The cost may not exceed seventy-five dollars for assessment, one hundred twenty-five dollars for education services, two hundred twenty-five dollars for treatment services, and three hundred dollars in total for any and all services. No applicant may be denied services due to an inability to pay. The applicant shall be terminated from the Alcohol and Drug Safety Action Program no later than six months after the date of program enrollment. If the applicant has not successfully completed the services as directed by the Alcohol and Drug Safety Action Program by the end of the six-month period of enrollment, a hearing must be provided by the administering agency and if further needed by the Commission on Alcohol and Drug Abuse. If the applicant is unsuccessful in the Alcohol and Drug Safety Action Program the department may restore the privilege to operate a motor vehicle upon the recommendation of the Medical Advisory Board as utilized by the department if it determines public safety and welfare of the petitioner may not be endangered.
The department and the Commission on Alcohol and Drug Abuse shall develop procedures necessary for the communication of information pertaining to relicensing or otherwise. Such procedures must be consistent with the confidentiality laws of the State and the United States. Successful completion of education, treatment services, or both, for purposes of receiving a provisional driver's license as stipulated in Section 56-1-1330 may be substituted in lieu of services received under the authority of this section at the discretion of the applicant. If the driver's license of any person is suspended by authority of this section, no insurance company may refuse to issue insurance to cover the remaining members of his family, but the insurance company is not liable for any actions of the person whose license has been suspended or who has voluntarily turned his license in to the department or the Department of Revenue and Taxation."
Name change
SECTION 1422. Section 56-5-3660 of the 1976 Code is amended to read:
"Section 56-5-3660. It shall be unlawful for any person under the age of twenty-one to operate or ride upon a two-wheeled motorized vehicle unless he wears a protective helmet of a type approved by the department. Such a helmet must be equipped with either a neck or chin strap and be reflectorized on both sides thereof. The department is hereby authorized to adopt and amend regulations covering the types of helmets and the specifications therefor and to establish and maintain a list of approved helmets which meet the specifications as established hereunder."
Name change
SECTION 1423. Section 56-5-3670 of the 1976 Code is amended to read:
"Section 56-5-3670. It shall be unlawful for any person under the age of twenty-one to operate a two-wheeled motorized vehicle unless he wears goggles or a face shield of a type approved by the department. The department is hereby authorized to adopt and amend regulations covering types of goggles and face shields and the specifications therefor and to establish and maintain a list of approved goggles and face shields which meet the specifications as established hereunder."
Name change
SECTION 1424. Section 56-5-3680 of the 1976 Code is amended to read:
"Section 56-5-3680. The provisions of Section 56-5-3670 with respect to goggles and face shields shall not apply to the operator of a two-wheeled motorized vehicle equipped with a wind screen meeting specifications established by the department. The department is hereby authorized to adopt and amend regulations covering types of wind screens and specifications therefor."
Name change
SECTION 1425. Section 56-5-3690 of the 1976 Code is amended to read:
"Section 56-5-3690. It shall be unlawful to sell, offer for sale or distribute any protective helmets, goggles or face shields for use by the operators of two-wheeled motorized vehicles, or protective helmets for the use of passengers thereon, unless they are of a type and specification approved by the department and appear on the list of approved devices maintained by the department."
Name change
SECTION 1426. Section 56-5-3750(A) of the 1976 Code is amended to read:
"(A) A person who sells, solicits, or advertises the sale of mopeds clearly and conspicuously shall label each moped with its specifications including, but not limited to, the brake horsepower of the motor and the maximum speed of the vehicle on level ground. The seller also shall attach a metal identification plate to each moped without pedals identifying the vehicle as a moped. This plate must be designed by the Department of Revenue and Taxation and must display information the department considers necessary for enforcement purposes. The plate must be displayed permanently on each moped without pedals and must not be removed. A seller of mopeds who fails to label a moped, fails to attach a metal identification plate to a moped without pedals, knowingly labels a motorcycle or motor-driven cycle as a moped, or attaches a metal identification plate to a motorcycle or motor-driven cycle identifying the vehicle as a moped is guilty of a misdemeanor and, upon conviction, must be fined not more than two hundred dollars or imprisoned for not more than thirty days."
Department name changed to Department of Transportation
SECTION 1427. Section 56-5-3880 of the 1976 Code is amended to read:
"Section 56-5-3880. The Department of Transportation may close state highways, roadways, or bridges to allow marathons or other running events when the race or event is open to all persons including the handicapped if in the opinion of the district engineer the race or event may be conducted in a safe manner. The Department of Transportation, city, county, organization, and sponsors of the race or event are immune from liability except for gross negligence from incidents arising from participation in or association with the race or event.
If the John P. Grace Memorial Bridge is not available for the annual Cooper River Bridge Run and Walk in Charleston County, the Silas N. Pearman Bridge must be made available for the event, if a contingency plan for vehicular traffic can be developed, provided, that if the Cooper River Bridge Run and Walk is not open to persons sixty-five years of age or older, neither bridge may be used for this event."
Department name changed to Department of Transportation
SECTION 1428. Section 56-5-4040 of the 1976 Code is amended to read:
"Section 56-5-4040. Incorporated cities and municipalities may by ordinance permit the operation within their respective jurisdictions of any motor bus or trolley coach with a maximum outside width of not to exceed one hundred and two inches. But in the case of state highways within incorporated cities no such permit shall become effective until approved by the Department of Transportation. All such permits shall specify the streets or sections of streets over which such trolley coaches may be operated. The term `trolley coach' means a vehicle which is propelled by electric power obtained from overhead trolley wires though not operated upon rails.
The Department of Transportation with respect to the state highways and local authorities with respect to other highways, may issue permits for the operation of motor buses and trolley coaches, having a lateral outside width of not exceeding one hundred and two inches upon any highway, route or routes of sufficient width in suburban areas adjacent to municipalities."
Name change
SECTION 1429. Section 56-5-4060 of the 1976 Code is amended to read:
"Section 56-5-4060. No vehicle, unladen or with load, may exceed a height of thirteen feet six inches except an automobile transporter unit the height of which may not exceed fourteen feet. It is unlawful for any person to operate or attempt to operate under any underpass having a vertical clearance of less than thirteen feet six inches any vehicle with a height in excess of the vertical clearance of the underpass posted in accordance with the manual on uniform traffic-control devices provided for in Section 56-5-920. No person is required to raise, alter, construct, or reconstruct any existing underpass, wire, pole, trestle, or other structure to permit the passage of any vehicle, and neither the State nor any of its agencies or political subdivisions are liable for any personal injury or property damage resulting from the operation of a vehicle over any highway, road, or bridge or through any underpass having a vertical clearance of less than fourteen feet where the Department of Transportation or other body having maintenance jurisdiction of the underpass has posted notice of the reduced vertical clearance in accordance with the manual on uniform traffic-control devices provided for in Section 56-5-920. An automobile transporter is responsible for any personal injury or property damage resulting from operating a unit at a height in excess of thirteen feet six inches."
Designation of highways; name change
SECTION 1430. Section 56-5-4070 of the 1976 Code is amended to read:
"Section 56-5-4070. (1) Two or three unit vehicle combinations may be operated on the National System of Interstate and Defense Highways, on those qualifying federal-aid highways so designated by the United States Secretary of Transportation, and other highways as designated by the Department of Public Safety in accordance with Section 56-5-4075. The department may require warning devices which may be necessary to protect public safety.
When in use on the National System of Interstate and Defense Highways and `other qualifying highways':
(a) a trailer or semitrailer may be operated in a two unit truck tractor-trailer or truck tractor-semitrailer combination in excess of a length of forty-eight feet but no longer than fifty-three feet, inclusive of the load carried on it. A fifty-three foot long trailer must be equipped with a rear underride guard and the distance between the kingpin of the vehicle and the center of the rear axle assembly or to the center of the tandem axle assembly if equipped with two axles must be no greater than forty-one feet;
(b) a trailer or semitrailer, operating in a three unit combination, may not exceed a length of twenty-eight and one-half feet, inclusive of the load carried on it;
(c) auto and boat transporters may not have an overall length in excess of seventy-five feet, exclusive of front and rear overhang; however, front overhang must not exceed three feet and rear overhang must not exceed four feet;
(d) saddle mounts and full mounts may not have an overall length in excess of seventy-five feet.
(2) No motor vehicle, exclusive of truck tractors being used in two or three unit combinations on the National System of Interstate and Defense Highways, on those qualifying federal-aid highways so designated by the United States Secretary of Transportation, and other highways as designated by the Department of Public Safety in accordance with Section 56-5-4075, may exceed a length of forty feet extreme overall dimension, inclusive of front and rear bumpers and load carried on it, and a motor vehicle, other than a motor home, in excess of thirty-five feet may have not less than three axles, except buses with two axles approved by the Department of Public Safety.
(3) A combination of vehicles coupled together or especially constructed to transport motor vehicles in a truckaway or driveaway service may tow up to three saddle mounts. No other combination of vehicles coupled together may consist of more than two units, except as permitted by subsection (1) of this section.
(4) Except as permitted by subsection (1) of this section, trailers or semitrailers used within combinations may not exceed a length of forty-eight feet and auto transporters are excluded from trailer length limitations. Auto transporters may be allowed an upper level overhang not to exceed three feet on the front and four feet on the rear.
(5) Except where specifically prohibited in this article, there is no overall length limit on combination vehicles.
(6) Appropriate safety and energy conservation devices and compressors and fuel saving equipment on the front or loading devices on the rear of trailers or semitrailers may not be considered when determining their length for purposes of this section if the overall length limitations of combinations of vehicles is not exceeded."
Authority to promulgate regulations
SECTION 1431. Section 56-5-4075 of the 1976 Code is amended to read:
"Section 56-5-4075. The Department of Public Safety, the Department of Transportation, and the Department of Revenue and Taxation may promulgate regulations as necessary to implement the provisions of this article. Regulations may be promulgated to make designations as are necessary to provide for those vehicles which operate on the National System of Interstate and Defense Highways and `other qualifying highways' pursuant to Sections 56-5-4030 and 56-5-4070 reasonable access to:
(a) terminals, facilities for food, fuel, repairs, and rest;
(b) points of loading and unloading for household goods carriers and auto transporters; and
(c) specific industrial, commercial, warehousing, and similar sites, only after consulting with and considering the views of the local governments through whose jurisdictions such specific site access would pass.
The Department of Transportation may cooperate with the United States Government by providing information to accomplish uniformity in designating `other qualifying highways'. The information may only be provided after safety and operational requirements of the citizens of this State have been studied by the Department of Transportation. Any proposals by the Department of Transportation to add highways, other than those provided for in (a), (b), and (c) of this section, to the network of `qualifying highways' designated by the U. S. Secretary of Transportation must be approved by the General Assembly before they become effective.
The Governor may petition the Secretary of Transportation of the United States to remove any highway federally designated under the Surface Transportation Assistance Act of 1982 [49 USCS Appx Sections 2301 et seq.], as amended by Congress, and not considered safe."
Name change
SECTION 1432. Section 56-5-4095 of the 1976 Code is amended to read:
"Section 56-5-4095. An official of the Department of Revenue and Taxation designated by the director, in his discretion, upon application in writing and good cause being shown, may issue to a vehicle a permit in writing authorizing the applicant to operate or move upon the state's public highways a motor vehicle and loads for transporting not more than two modular housing units or sectional housing units if the total length of the vehicle, including the load, does not exceed the length presently authorized by law and regulation for the transporting of mobile homes. No permit may be issued to any vehicle whose operation upon the public highways of this State threatens the safety of others or threatens to unduly damage a highway or any of its appurtenances."
Name change
SECTION 1433. Section 56-5-4140 of the 1976 Code is amended to read:
"Section 56-5-4140. (1) The gross weight of a vehicle or combination of vehicles, operated or moved upon any highway or section of highway other than the Interstate System, shall not exceed:
(a) Single-unit vehicle with
two axles…………………… 35,000 lbs.
(b) Single-unit vehicle with
three axles…………………. 46,000 lbs.
(c) Single-unit vehicle with
four or more axles…………… 63,000 lbs.
(d) Combination of vehicles with
three axles…………………. 50,000 lbs.
(e) Combination of vehicles with
four axles………………….. 65,000 lbs.
(f) Combination of vehicles with
five or more axles…………… 73,280 lbs.
The gross weight imposed upon the highway by two or more consecutive axles in tandem articulated from a common attachment to the vehicle and spaced not less than forty inches nor more than ninety-six inches apart shall not exceed thirty-six thousand pounds, and no one axle of any such group of two or more consecutive axles shall exceed the load permitted for a single axle. The load imposed on the highway by two consecutive axles, individually attached to the vehicle and spaced not less than forty inches nor more than ninety-six inches apart, shall not exceed thirty-six thousand pounds and no one axle of any such group of two consecutive axles shall exceed the load permitted for a single axle. The gross weight imposed upon the highway by all axles of a single-unit vehicle with four or more axles shall not exceed the following:
Distance between the
extremes of the front Maximum
and rear axles measured Gross
to the nearest foot Weight
At least 12 feet 50,000
At least 13 feet 50,000
At least 14 feet 51,500
At least 15 feet 52,000
At least 16 feet 52,500
At least 17 feet 53,500
At least 18 feet 54,000
At least 19 feet 54,500
At least 20 feet 55,500
At least 21 feet 56,000
At least 22 feet 56,500
At least 23 feet 57,500
At least 24 feet 58,000
At least 25 feet 58,500
At least 26 feet 59,500
At least 27 feet 60,000
At least 28 feet 60,500
At least 29 feet 61,500
At least 30 feet 62,000
At least 31 feet 62,500
At least 32 feet 63,500
(2)(a) Except as permitted in (b) of this subitem, the maximum permissible gross weight which may be imposed upon any highway or section of highway in the Interstate System is prescribed by this section. The overall maximum gross weight of a vehicle or combination of vehicles may not exceed:
(1) Single-unit vehicle with
two axles…………………….. 35,000 lbs.
(2) Single-unit vehicle with
three axles…………………… 46,000 lbs.
(3) Single-unit vehicle with
four or more axles…………….. 63,500 lbs.
(4) Combination of vehicles with
three axles…………………… 50,000 lbs.
(5) Combination of vehicles with
four axles……………………. 65,000 lbs.
(6) Combination of vehicles with
five or more axles…………….. 73,280 lbs.
The overall maximum gross weight of single unit vehicles with four or more axles may not exceed the following:
Distance between the
extremes of the front Maximum
and rear axles measured Gross
to the nearest foot Weight
At least 12 feet 50,000
At least 13 feet 50,500
At least 14 feet 51,500
At least 15 feet 52,000
At least 16 feet 52,500
At least 17 feet 53,500
At least 18 feet 54,000
At least 19 feet 54,500
At least 20 feet 55,500
At least 21 feet 56,000
At least 22 feet 56,500
At least 23 feet 57,500
At least 24 feet 58,000
At least 25 feet 58,500
At least 26 feet 59,500
At least 27 feet 60,000
At least 28 feet 60,500
At least 29 feet 61,500
At least 30 feet 62,000
At least 31 feet 62,500
At least 32 feet 63,500
The ten percent enforcement tolerance specified in Section 56-5-4160 applies to the vehicle weight limits specified in this subsection except, the gross weight on a single axle may not exceed 20,000 pounds, including all enforcement tolerances; the gross weight on a tandem axle may not exceed 35,200 pounds, including all enforcement tolerances; and the overall gross weight may not exceed 75,185 pounds, including all enforcement tolerances.
(b) Vehicles with an overall maximum gross weight in excess of 75,185 pounds may operate upon any highway or section of highway in the Interstate System in accordance with the following:
The weight imposed upon the highway by any group of two or more consecutive axles may not, unless specially permitted by the Department of Revenue and Taxation, exceed an overall gross weight produced by the application of the following formula: W=500 (LN/N-1 + 12N + 36)
In the formula W equals overall gross weight on any group of two or more consecutive axles to be nearest 500 pounds, L equals distance in feet between the extreme of any group of two or more consecutive axles, and N equals number of axles in the group under consideration.
As an exception, two consecutive sets of tandem axles may carry a gross load of 68,000 pounds if the overall distance between the first and last axles of the consecutive sets of tandem axles is 36 feet or more. Additionally, the gross weight imposed upon the highway by any one axle of a vehicle may not exceed 20,000 pounds, and the gross weight imposed upon the highway by any group of two or more axles spaced not less than forty nor more than ninety-six inches apart (tandem axle) may not exceed 34,000 pounds, and the overall maximum gross weight except for those vehicles which have been issued special permits by the Department of Revenue and Taxation, may not exceed 80,000 pounds. The formula is expressed by the following table:
Distance in feet Maximum load in pounds
between the extremes carried on any group of
of any group of 2 or 2 or more consecutive
more consecutive axles axles
2 3 4 5 6 7
axles axles axles axles axles axles
4 34,000
5 34,000
6 34,000
7 34,000
8 & less 34,000 34,000
more than 8 38,000 42,000
8 34,000 34,000
9 39,000 43,000
10 40,000 43,500
11 44,500
12 45,000 50,000
13 46,000 50,500
14 46,500 51,500
15 47,500 52,000
16 48,000 52,500 58,000
17 49,000 53,500 58,500
18 49,500 54,000 59,500
19 50,500 54,500 60,000
20 51,000 55,500 60,500 66,000
21 52,000 56,000 61,000 66,500
22 52,500 56,500 62,000 67,000
23 53,500 57,500 62,500 68,000
24 54,000 58,000 63,000 68,500 74,000
25 55,000 58,500 63,500 69,000 74,500
26 55,500 59,500 64,500 69,500 75,000
27 56,500 60,000 65,000 70,000 75,500
28 57,000 60,500 65,500 71,000 76,500
29 58,000 61,500 66,000 71,500 77,000
30 58,500 62,000 67,000 72,000 77,500
31 59,500 62,500 67,500 72,500 78,000
32 60,000 63,500 68,000 73,000 78,500
33 64,000 68,500 74,000 79,000
34 64,500 69,500 74,500 80,000
35 65,500 70,000 75,000
36 68,000 70,500 75,500
37 68,000 71,000 76,000
38 68,000 72,000 77,000
39 68,000 72,500 77,500
40 68,500 73,000 78,000
41 69,500 73,500 78,500
42 70,000 74,500 79,000
43 70,500 75,000 80,000
44 71,500 75,500
45 72,000 76,000
46 72,500 77,000
47 73,500 77,500
48 74,000 78,000
49 74,500 78,500
50 75,500 79,500
51 76,000 80,000
52 76,500
53 77,500
54 78,000
55 78,500
56 79,500
57 80,000
Enforcement tolerances allowed in Section 56-5-4160 do not apply to vehicles with an overall gross weight in excess of 75,185 pounds.
(c) Until September 1, 1988, there is a moratorium on enforcement of the 34,000 pound tandem axle limit for vehicles operating on the Interstate System in South Carolina within a gross weight of 75,185 and 80,000 pounds to the extent that the vehicles may carry up to 35,200 pounds on a tandem axle or on each tandem axle within a series of tandem axles. As of September 1, 1988, the moratorium on enforcement referred to in this paragraph shall lapse.
Until September 1, 1988, the federal bridge formula may not be enforced so as to reduce the 35,200 pound tandem axle limit permitted pursuant to paragraph 1 of this item (c) of subsection (2).
Until September 1, 1988, for the five categories of carriers set forth in this paragraph which are operating within a gross vehicle weight of 75,185 and 80,000 pounds on Interstate Highways within South Carolina, there is a moratorium on enforcement of inner bridge measurements under the federal bridge formula. The five categories of carriers are:
(a) five axle vehicles or combinations of vehicles designed solely for transportation of liquids or tankers designed for bulk hauling;
(b) five axle dump trucks with a tandem axle configuration;
(c) five axle vehicles engaged in the transportation of construction materials;
(d) vehicles transporting raw or unprocessed agricultural or forest products;
(e) any intermodal ocean containers. This moratorium shall lapse on September 1, 1988.
After September 1, 1988, both the 34,000 pound tandem axle limit and the federal bridge formula established by 23 U.S.C. Section 127 must be enforced in their entirety for all vehicles operating on Interstate Highways within South Carolina within a gross vehicle weight of 75,185 and 80,000 pounds. Any moratorium on enforcement granted by this stipulation shall lapse as of September 1, 1988.
(3) Except on the interstate highway system:
(a) Dump trucks, dump trailers, trucks carrying agricultural products, concrete mixing trucks, fuel oil trucks, line trucks, and trucks designated and constructed for special type work or use are not required to conform to the axle spacing requirements of this section but the vehicle is limited to a weight of twenty thousand pounds per axle plus scale tolerances and the maximum gross weight of these vehicles may not exceed the maximum weight allowed by this section for the appropriate number of axles, irrespective of the distance between axles, plus allowable scale tolerances.
(b) Concrete mixing trucks which operate within fifteen miles of their home base are not required to conform to the requirements of this section but these vehicles are limited to a maximum load of the rated capacity of the concrete mixer, the true gross load not to exceed sixty-six thousand pounds. All of these vehicles shall have at least three axles each with brake-equipped wheels."
Department name changed to Department of Transportation
SECTION 1434. Section 56-5-4145 of the 1976 Code is amended to read:
"Section 56-5-4145. (a) The weights stated in Sections 56-5-4070, 56-5-4075 and 56-5-4140 are applicable to all roads and bridges as designated except the Grace Memorial Bridge in Charleston County on which trucks of no greater weight than ten tons are allowed.
(b) The Grace Memorial Bridge (U. S. Route 17 over the Cooper River in Charleston County) is not a designated route in accordance with the provisions of the Surface Transportation Assistance Act of 1982 [49 USCS Appx Sections 2301 et seq.]. Vehicles being operated or used on such segment of highway may not exceed a width of ninety-six inches nor exceed the gross weight limit as posted by the Department of Transportation, except during emergency conditions as determined by the Department of Transportation. Vehicle combinations of a truck-tractor, trailer or a truck-tractor, semitrailer or a truck-tractor, semitrailer, trailer or a truck-tractor, trailer-trailer are prohibited from being operated or used on this segment of highway."
Name change
SECTION 1435. Section 56-5-4150 of the 1976 Code is amended to read:
"Section 56-5-4150. The Department of Revenue and Taxation upon registering a vehicle, under the laws of this State, which is designed and used primarily for the transportation of property or for the transportation of ten or more persons, may require information and may make investigation or tests necessary to enable it to determine whether the vehicle may be operated safely upon the highways in accordance with all the provisions of this chapter. The Department of Revenue and Taxation may register the vehicle for a load capacity which, added to the empty or unloaded weight of the vehicle, will result in a permissible gross weight not exceeding the limitations set forth in this chapter. It is unlawful for a person to operate a vehicle or combination of vehicles with a load capacity in excess of that for which it is registered by the Department of Revenue and Taxation or in excess of the limitations set forth in this chapter. A person making application for a `farm truck' license shall declare, in the form prescribed by the Department of Revenue and Taxation, the true unloaded or empty weight of the vehicle. A private motor truck or truck tractor of more than twenty-six thousand pounds gross weight and a for-hire motor truck or truck tractor must have the name of the registered owner or lessor on the side clearly distinguishable at a distance of fifty feet. These provisions do not apply to two-axle straight trucks hauling raw farm and forestry products. A truck operating pursuant to the federal motor carrier safety regulations may operate with the owner's, lessor's, or lessee's name as required."
Crediting of fines
SECTION 1436. Section 56-5-4160(E) as of the 1976 Code is amended to read:
"(E) Magistrates have jurisdiction of violations of this section. All monies collected pursuant to Section 56-5-4160 must be forwarded to the department by the magistrate within forty-five days for deposit in the state general fund. The department shall use this money for upgrading and refurbishing existing weigh stations, including adequate night lighting for enforcement activities and any other safety measures that the department considers necessary. The fine may be deposited with the arresting officer or anyone else the department may designate. The fine must be deposited in full or other arrangements satisfactory to the department for payment must be made before the operator is allowed to move the vehicle. If there is no conviction, the fine must be returned to the owner promptly.
`Conviction' as used in this section, also includes the entry of a plea of guilty or nolo contendere and the forfeiture of bail or collateral deposited to secure a defendants presence in court.
If the fine is not paid in full to the department within forty-five days after conviction, the license and registration of the vehicle found to exceed the limits imposed by Section 56-5-4130 or 56-5-4140 must be suspended. The owner of the vehicle immediately shall return the license and registration of the vehicle to the department. If a person fails to return them as provided in this section, the department may secure possession of them by a commissioned trooper. The suspension continues until the fine is paid in full."
Special fund created; uses
SECTION 1437. Section 56-5-4160 of the 1976 Code is amended by adding:
"(H) Notwithstanding any other provision of law, all fines collected pursuant to this section must be deposited into an account in the Office of the State Treasurer and called the `Size and Weight Revitalization Program Fund for Permanent Improvements.' Monies credited to the fund may only be expended as authorized in item (E) of this section."
Name change
SECTION 1438. Section 56-5-4170 of the 1976 Code is amended to read:
"Section 56-5-4170. (a) Subject to the conditions prescribed in subsection (b), the Department of Revenue and Taxation, in its discretion upon application in writing and good cause being shown that it is in the public interest, may issue special permits authorizing the applicants to operate or move vehicles or combinations of vehicles of a size and weight of vehicle or load exceeding the maximum specified in this article or otherwise not in conformity with the provisions of this article upon any state highway. The application for the permit specifically must describe the vehicle and load to be operated or moved and the particular highways for which a permit to operate is requested. A permit must be carried in the vehicle or combination of vehicles to which it refers and must be open to inspection by any police officer or authorized agent of the authority granting the permit. No person may violate any of the terms or conditions of the special permit. The Department of Revenue and Taxation shall charge a fee of twenty dollars for each permit issued, and fees collected pursuant to this provision must be placed in the state general fund and used for defraying the cost of issuing and administering the permits, and for other highway purposes.
(b) The Department of Revenue and Taxation may exercise its discretion in issuing permits for the movement of all types of vehicles which exceed the legal size and weight limits, provided that the:
(1) load carried thereon cannot be readily disassembled;
(2) Department of Revenue and Taxation, in conjunction with the Department of Transportation may limit or prescribe conditions of operation of such vehicles;
(3) Department of Revenue and Taxation may require such insurance or other security as it deems necessary; and
(4) movements are made so as not to damage the highways nor unduly interfere with highway traffic.
The following are general provisions applicable to all oversize and overweight loads:
(1) The granting of a permit shall not constitute a waiver of any license requirements imposed by the State of South Carolina.
(2) The granting of a permit does not waive any liability or responsibility of the applicant which might accrue for any property damage, including damage to the highways, or for personal injuries.
(3) The granting of a permit does not exempt the applicant from compliance with any ordinances, rules and regulations of any city or town.
(4) Before granting any permit, the Department of Revenue and Taxation, at its discretion, may require the vehicle owner or operator to furnish a certificate showing the amount of public liability and property damage, insurance carried.
(5) All vehicles shall meet the requirements of all applicable laws and regulations.
(6) Overwidth loads or mobile homes shall be moved over sections of highways selected by the Department of Transportation.
(7) The Department of Transportation will determine the speeds permitted loads are to operate under.
(8) The driver shall remove the towing vehicle along with the load or mobile home from the traveled way to allow any closely following traffic (five vehicles maximum) to pass and proceed.
Applications for overweight and oversize permits shall be submitted on forms provided by the Department of Transportation to the Department of Revenue and Taxation and shall include all the necessary information required.
Each application shall be accompanied by the permit fee before it can be issued. The permit fee accompanying any application that is rejected will be returned to the person or company named within the application.
Special oversize and overweight trip permits for movement of vehicles or combinations of vehicles with individual loads thereon in excess of the maximum sizes and weights allowed must receive special consideration by and have prior approval of the Department of Transportation prior to any part of the move to be undertaken.
In all cases, the State reserves the right to recall or not issue permits in accordance with the above limitations if there is an abuse of the permit or such permit would cause an unnecessary amount of disruption in the normal traffic flow.
(c) Notwithstanding the exemptions from the provisions of this article provided in Section 56-5-4020, the owner of vehicles or combinations of vehicles used to transport and spread soil improvement products exempted therein from load and size limitations shall obtain an annual special permit from the Department of Revenue and Taxation which prescribes such limitations on the exemption as the Department of Transportation may determine necessary. The fee for such annual permits shall be five dollars with all such fees used as prescribed for other fees collected under this section.
(d) The detailed implementation of this section shall not be deemed to have general applicability to the public as prescribed in Chapter 23 of Title 1 and additional procedures established by the Department of Transportation and the Department of Revenue and Taxation for such implementation shall be exempt from the requirement of General Assembly approval required by that chapter when such procedures are established in accordance with the provisions of this section."
Name change
SECTION 1439. Section 56-5-4175 of the 1976 Code is amended to read:
"Section 56-5-4175. (a) The Department of Revenue and Taxation may, under such terms and conditions as in its judgment may be in the public interest for safety on the highways and in addition to other permits required by Title 56 of the 1976 Code, issue permits for the use on public highways of sheet tobacco trucks. For the purposes of this section `sheet tobacco truck' is defined as a vehicle used to transport tobacco in sheets which does not exceed ninety-six inches in width at the truck bed and nine feet six inches at the widest part of the load above the truck bed. To be valid such permit shall be carried on the towing vehicle and it shall be unlawful for any person to violate any provision, term or condition of such permit. The fee for each permit shall be fifteen dollars and shall authorize the use of only one properly described sheet tobacco truck. The Department of Revenue and Taxation may promulgate rules and regulations to carry out the provisions of this section.
(b) Any person violating the provisions of subsection (a) or any rule and regulation promulgated by authority hereof is guilty of a misdemeanor and upon conviction shall be fined in an amount not to exceed two hundred dollars or imprisoned for a term not to exceed thirty days."
Name change
SECTION 1440. Section 56-5-4180 of the 1976 Code is amended to read:
"Section 56-5-4180. The Department of Revenue and Taxation may, under such terms and conditions as it considers to be in the best interest of the public for safety on the highways, issue multiple trip permits for the moving of over-dimensional or overweight nondivisible loads over specified state highways determined by the Department of Transportation. The fee for the permit is fifty dollars, payable at the time of issuance, as long as a permit is purchased for each vehicle in the fleet, one hundred percent. A multiple trip permit is valid for one year from the date of issuance. To be valid, the original permit must be carried on the towing vehicle. It is unlawful for any person to violate any provision, term, or condition of the permit. The permit is subject at all times to inspection by any law enforcement officer or authorized agent of the authority issuing the permit. A multiple trip permit is void one year from the date of issue or whenever the Department of Revenue and Transportation is notified in writing that the permit has been lost, stolen, or destroyed."
Name change
SECTION 1441. Section 56-5-4185 of the 1976 Code is amended to read:
"Section 56-5-4185. Notwithstanding Section 56-5-4030 or any other provision of this chapter, the Department of Revenue and Taxation shall issue, under terms and conditions as in its judgment are in the public interest for safety on the highways, an open end or annual permit for the use on the public highways of cotton modular vehicles. For the purposes of this section, `cotton modular vehicle' is defined as a single motor vehicle used only to transport seed cotton modules, cotton, or equipment used in the transporting or processing of cotton. This cotton modular vehicle must not exceed a width of one hundred seven inches and must not exceed a length of forty-six feet extreme overall dimensions and inclusive of front and rear bumpers and load. To be valid, the permit must be carried on the vehicle, and it is unlawful for any person to violate any provision, term, or condition of the permit. The fee for the permit is fifty dollars and authorizes the use of only one properly described cotton modular vehicle. The Department of Revenue and Taxation and the Department of Transportation may promulgate regulations to carry out the provisions of this section. A person violating (1) the provisions of this section, (2) any provision, term, or condition of the permit, or (3) any regulation promulgated pursuant to the authority of this section is guilty of a misdemeanor and, upon conviction, must be fined an amount not exceeding two hundred dollars or imprisoned for a term not exceeding thirty days."
Name change
SECTION 1442. Section 56-5-4190 of the 1976 Code is amended to read:
"Section 56-5-4190. Before issuance of any open-end permit to any person, such person shall:
(1) File with the Department of Revenue and Taxation in such form as may be approved by the Department of Revenue and Taxation a bond in the amount of five hundred dollars or such greater amount as the applicant may determine will at all times equal or exceed the net value of all open-end permits to be issued to the applicant by the Department Revenue and Taxation for which payment is not received at the time of issuance, payable to the Department of Revenue and Taxation by some surety or guaranty company authorized to do business in this State and approved by the Department of Revenue and Taxation as surety conditional upon the lawful movement of any oversize mobile home, modular home unit or utility building over any highway in this State and the payment to the Department of Revenue and Taxation any and all amounts when due for fees provided for in Sections 56-3-710 and 56-5-4200 and the compliance with all of the terms, conditions and restrictions of any oversize permit of any sort issued to such person filing such bond; or
(2) File with the Department of Revenue and Taxation a deposit of cash or acceptable negotiable securities sufficient in the opinion of the Department of Revenue and Taxation to adequately secure the sum of five hundred dollars or such greater amount as the applicant may determine will at all times equal or exceed the net value of all open-end permits to be issued to the applicant by the Department of Revenue and Taxation for which payment is not received at the time of issuance, such deposit to be made upon the same conditions as those required to be set forth in the bond provided for in item (1) of this section."
Name change; allocation of inspection functions
SECTION 1443. Section 56-5-4200 of the 1976 Code is amended to read:
"Section 56-5-4200. All persons to whom open-end permits are issued shall file with the Department of Revenue and Taxation on or before the twentieth day of each January, April, July, and October reports showing the number of trips made during the preceding quarter ending on December thirty-first, March thirty-first, June thirtieth, and September thirtieth, respectively, the dates of such trips, and such other information as the Department of Revenue and Taxation may require. The fee of ten dollars a trip, required to be paid pursuant to Section 56-3-710, must be paid to the Department of Revenue and Taxation with each such report filed; however, the fee for additional trips of less than twelve miles distance made under such open-end permits is one dollar a trip. Persons to whom open-end permits are issued shall maintain full and complete records of all oversize mobile homes, modular home units, or utility buildings moved, such records to be open to audit and inspection by the Department of Revenue and Taxation and the Department of Public Safety."
Oversize load permits
SECTION 1444. Section 56-5-4205 of the 1976 Code is amended to read:
"Section 56-5-4205. The Department of Revenue and Taxation, under such terms as in the judgment of the Department of Transportation and the Department of Public Safety may be in the public interest for safety on the highways, may issue open end or annual permits for moving oversize loads and vehicles, oversize mobile homes, modular home units, utility buildings and steel tanks, pursuant to Sections 56-5-4180, 56-5-4190, and 56-5-4200. All heights shall not exceed fourteen and one-half feet and the owner of any such transporter shall be responsible for any damage which may occur."
Department name changed to Department of Transportation
SECTION 1445. Section 56-5-4210 of the 1976 Code is amended to read:
"Section 56-5-4210. Anything in this article to the contrary notwithstanding, the Department of Transportation with respect to state highways and local authorities with respect to highways under their jurisdiction may prescribe, by notice as herein provided, loads and weights and speed limits lower than the limits prescribed in this chapter and other laws, whenever in their judgment any road or part thereof or any bridge or culvert shall by reason of its design, deterioration, rain or other climatic or natural causes be liable to be damaged or destroyed by motor vehicles, trailers or semitrailers, if the gross weight or speed limit thereof shall exceed the limits prescribed in such notice. And the Department of Transportation or such local authority may, by like notice, regulate or prohibit, in whole or in part, the operation of any specified class or size of motor vehicle, trailer or semitrailer on any highways or specified parts thereof under its jurisdiction, whenever in its judgment, such regulation or prohibition is necessary to provide for the public safety and convenience on such highways or parts thereof by reason of traffic density, intensive use thereof by the traveling public or other reasons of public safety and convenience. The notice or the substance thereof shall be posted at conspicuous places at terminals of and all intermediate cross-roads and road junctions with the section of highway to which such notice shall apply. After any such notice shall have been posted, the operation of any motor vehicle or combination contrary to its provisions shall constitute a violation of this chapter."
Department name changed to Department of Transportation
SECTION 1446. Section 56-5-4220 of the 1976 Code is amended to read:
"Section 56-5-4220. No limitation shall be established by any county, municipal or other local authority pursuant to the provisions of Section 56-5-4210 that would interfere with or interrupt traffic as authorized hereunder over state highways, including officially established detours for such highways and cases where such traffic passes over roads, streets or thoroughfares within the sole jurisdiction of such county, municipal or other local authority, unless such limitations and further restrictions shall have first been approved by the Department of Transportation, except that with respect to county roads, other than such as are in use as state highway detours, the respective county road authorities shall have full power and authority to further limit the weights of vehicles upon bridges and culverts upon such public notice as they deem sufficient, and existing laws applicable thereto shall not be affected by the terms of this article."
Name change
SECTION 1447. Section 56-5-4720 of the 1976 Code is amended to read:
"Section 56-5-4720. Notwithstanding the provisions of Section 56-5-4700, any department vehicle may use oscillating, rotating or flashing red lights during any emergency. The department personnel shall determine when an emergency exists."
Name change
SECTION 1448. Section 56-5-4840 of the 1976 Code is amended to read:
"Section 56-5-4840. It shall be unlawful for any person to sell, offer for sale or use any device or equipment which tends to change the original design or performance of any head lamps or any other lamps or reflectors required by law to be attached to motor vehicles, trailers or semitrailers unless the equipment or device has been approved by the director of the department."
Brake inspections; allocation of enforcement
SECTION 1449. Section 56-5-4880 of the 1976 Code is amended to read:
"Section 56-5-4880. (a) The department is authorized to require an inspection of the braking system on any motor-driven cycle and to disapprove any such braking system on a vehicle which it finds will not comply with the performance ability standard set forth in Section 56-5-4860, or which in its opinion is equipped with a braking system that is not so designed or constructed as to insure reasonable and reliable performance in actual use.
(b) The Department of Revenue and Taxation may refuse to register or may suspend or revoke the registration of any vehicle referred to in this section when it determines that the braking system thereon does not comply with the provisions of this section.
(c) No person shall operate on any highway any vehicle referred to in this section in the event the department has disapproved the braking system upon such vehicle."
Name change
SECTION 1450. Section 56-5-4940 of the 1976 Code is amended to read:
"Section 56-5-4940. The warranty provisions of Sections 56-5-4910 to 56-5-4940 shall not be applicable with respect to any private passenger automobile as to which the manufacturer files a written certification under oath with the department, on a form to be prescribed by that department, that the particular make and model described therein complies with the applicable standards of Sections 56-5-4910 to 56-5-4940. Nothing in Sections 56-5-4910 to 56-5-4940 should be construed to remove any common-law or statutory remedy available against the manufacturer, distributor or ultimate vendor for a defective product."
Name change
SECTION 1451. Section 56-5-5010 of the 1976 Code is amended to read:
"Section 56-5-5010. No person shall sell any new motor vehicle nor shall any new motor vehicle be registered unless such vehicle is equipped with safety glass wherever glass is used in doors, windows and windshields. The foregoing provisions shall apply to all passenger-type motor vehicles, including passenger buses and school buses. But in respect to trucks, including truck tractors, the requirements as to safety glass shall apply to all glass used in doors, windows and windshields in the drivers' compartments of such vehicles.
The Department of Revenue and Taxation shall not register any motor vehicle which is subject to the provisions of this section unless it is equipped with an approved type of safety glass and the Department of Revenue and Taxation may thereafter suspend the registration of any motor vehicle so subject to this section which it finds is not so equipped until it is made to conform to the requirements of this section."
Name change
SECTION 1452. Section 56-5-5320 of the 1976 Code is amended to read:
"Section 56-5-5320. (a) Any officer of the department authorized to administer or enforce the motor vehicle laws of the State may at any time upon reasonable cause to believe that a vehicle is unsafe or not equipped as required by law or that its equipment is not in proper adjustment or repair require the driver of such vehicle to stop and submit such vehicle to an inspection and such test with reference thereto as may be appropriate to determine that such vehicle and equipment are in safe operating conditions and that they comply with the requirements of this chapter. Such authority, however, shall be limited to the inspection of such vehicle for brakes, lights, horn, tires and windshield wiper, and shall not authorize the search of the vehicle or the occupants thereof for any other purpose without due process of law. Evidence of the commission of an unlawful act, procured by such inspection and such test, shall not be admissible in any criminal prosecution except such as may be provided for in this article.
(b) In the event such vehicle is found to be in unsafe condition, or any required part or equipment is not present or is not in proper repair and adjustment the officer shall give a written notice to the driver and shall send a copy to the department. The notice shall require that such vehicle be placed in safe condition and its equipment in proper repair and adjustment, specifying the particulars with reference thereto, and that a certificate of inspection and approval be obtained from an officer of the department within ten days."
Name change
SECTION 1453. Section 56-5-5330 of the 1976 Code is amended to read:
"Section 56-5-5330. (a) No person driving a vehicle shall refuse to submit such vehicle to an inspection and test when required to do so by the department or an authorized officer or employee thereof.
(b) Every owner or driver, upon receiving a notice as provided in Section 56-5-5320, shall comply therewith, and shall, within ten days, secure an official certificate of inspection and approval from an officer of the department which shall be issued in triplicate, one copy to be retained by the owner, one copy to be retained by the inspecting officer, and the other copy to be forwarded to the department. In lieu of compliance with the provisions of this subsection, the vehicle shall not be operated except as provided in subsection (c) and each day upon which such vehicle is operated over any highway of this State after failure to comply with this section shall constitute a separate offense.
(c) No person shall operate any unsafe or dangerous vehicle after receiving a notice with reference thereto as above provided except as may be necessary to return such vehicle to the residence or place of business of the owner or driver, at the discretion of the officer, or to a garage or service station, until such vehicle and its equipment has been placed in proper repair and adjustment and otherwise made to conform to the requirements of Article 35 of this chapter.
(d) In the event repair or adjustment of any vehicle or its equipment is found necessary upon inspection, the owner of the vehicle may obtain such repair or adjustment at any place he may choose; but in every event an official certificate of inspection and approval from an officer of the department must be obtained, otherwise such vehicle shall not be operated upon the highways of this State.
(e) Any person who wishes to make his own repairs may do so."
Name change
SECTION 1454. Section 56-5-5340 of the 1976 Code is amended to read:
"Section 56-5-5340. The Department of Revenue and Taxation shall not register a used vehicle for the first time unless the application therefor is accompanied by a copy of a certificate of inspection as provided for in this article and made out in the name of the new owner. The limitations of inspection, conditions of repair and use of defective vehicles provided for in this article shall apply to such a used vehicle."
Vehicle inspection; allocation of enforcement
SECTION 1455. Section 56-5-5350 of the 1976 Code is amended to read:
"Section 56-5-5350. (a) The department shall require that every vehicle registered in this State, except house trailers, shall be inspected at least once a year and have displayed at all times a department-approved certificate of inspection and approval in a practical location specified by the department. No person shall drive or move on any highway any vehicle, except house trailers, unless there shall be in effect and properly displayed thereon a current certificate of inspection.
(b) Such inspection shall be made of every such vehicle and such certificates obtained with respect to the mechanism, lights, tires, brakes, and equipment of such vehicle as shall be designated by the department. (c) The Department of Revenue and Taxation may accept a certificate of inspection and approval issued by a qualified agency or department of another state and shall except from the provisions of this article all vehicles subject to the United States Department of Transportation federal motor carrier safety regulations.
(d) The Department of Revenue and Taxation shall suspend the registration of any vehicle which it determines is in such unsafe condition as to constitute a menace to safety and which after notice and demand is not equipped, as required in this article, and for which a required certificate has not been obtained.
(e) The Department of Revenue and Taxation, before registering and titling a vehicle, shall require that the application therefor be accompanied by an official certificate of inspection and approval issued for the vehicle by an inspection station licensed to inspect vehicles in this State.
(f) No motor vehicle shall be sold in South Carolina without having a valid South Carolina inspection stamp affixed before delivery to the buyer."
Name change; crediting of fees
SECTION 1456. Section 56-5-5360 of the 1976 Code is amended to read:
"Section 56-5-5360. (a) The department shall designate and approve official inspection stations and is authorized to issue annual permits therefor upon application therefor and payment of the required fee. Motor fleet inspection stations, licensed under this article, shall not be required to inspect vehicles for the general public. The department shall furnish instructions and all necessary forms to official inspection stations for the inspection of vehicles as herein required in the issuance of official certificates of inspection and approval.
(b) Application for license must be made on an official form and must be granted only when the department is satisfied that the station is properly equipped and has competent personnel to make the inspections and will be properly conducted. A fee of ten dollars must be charged for every official inspection station permit issued, or a renewal thereof; provided, that no fee may be charged to official inspection stations of the state, county, or other political subdivision for garages maintained for the upkeep and maintenance of public-owned vehicles. Any garage or station being refused the right to issue certificates of inspection upon request must be granted a hearing by the department.
(c) The official inspection stations shall issue a certificate of inspection and approval upon an official form to the owner of a vehicle upon inspecting such vehicle and determining that its equipment required under the provisions of this article is in good condition and proper adjustment, otherwise no certificate shall be issued. When required by the department records and reports shall be made of every inspection and every certificate to be issued.
(d) Official inspection stations may charge a fee of not more than two dollars and fifty cents for each inspection and fifty cents for the issuance of inspection certificates. Provided, that if any vehicle does not pass inspection at any station and is taken to another place to have such defect corrected, the fee shall not be charged again provided the motor vehicle is taken to the station which originally made the inspection. Inspection forms shall be prepared by the department and furnished to inspection stations at a cost of fifty cents each.
(e) The department shall properly supervise and cause inspections to be made of the stations' and vehicle inspectors' performance and may, after reasonable notice, suspend or revoke and require the surrender of the license issued to a station and the permit issued to a vehicle inspector which it finds is not properly equipped or conducted. The department shall maintain and post at its office, lists of all stations issued licenses and vehicle inspectors issued permits and of those licenses and permits that have been suspended or revoked.
Monetary penalties which may be imposed separately upon a vehicle inspection station or a vehicle inspector in lieu of suspension or revocation are as follows:
For a first offense Not less than twenty-five dollars nor more than one hundred dollars
For a second offense Not less than fifty dollars nor more than one hundred dollars
For a third offense Not less than one hundred dollars nor more than two hundred dollars
For a fourth and each Not less than five hundred subsequent offense dollars nor more than two thousand dollars
(f) Official inspection stations and vehicle inspectors whose licenses or permits are suspended or revoked under the provisions of this section may request in writing a hearing and upon receipt of the request the department shall schedule a hearing pursuant to the Administration Procedures Act. The hearing must be in the county where the permittee resides unless the department and the licensee or permittee agree that the hearing may be held in some other county. The review may be held by a duly authorized agent of the department. Upon the hearing the department shall either rescind its order of suspension or revocation or, good cause appearing, may continue, modify, or extend the suspension or revocation order of the licensee or permittee. The department may impose a monetary penalty against the inspection station and the vehicle inspector in lieu of suspension or revocation. Failure to pay the monetary penalty shall result in suspension or revocation of the license of the inspection station or permit of the vehicle inspector.
Any inspection station whose agents and employees falsely or fraudulently specify work to be done or parts to be installed shall, in addition to suspension or revocation of its license, be fined the sum of one hundred dollars and the cost of any labor or parts unnecessarily done or installed must be refunded to the vehicle owner.
(g) All such fees collected by the department shall be credited to the state general fund."
Authority to promulgate regulations
SECTION 1457. Section 56-5-5400 of the 1976 Code is amended to read:
"Section 56-5-5400. The department and the Department of Revenue and Taxation is authorized to promulgate rules and regulations for the administration and enforcement of this article; provided, that in the rules and regulations no specific brand or type of equipment shall be named or designated as inspection equipment, and only standards of performance shall be set. Provided, further, that the rules and regulations shall be so drawn as not to provide a monopoly of one make of equipment. When these rules and regulations are duly promulgated they shall have the full force and effect of law."
Name change
SECTION 1458. Section 56-5-5410 of the 1976 Code is amended to read:
"Section 56-5-5410. For the purpose of administering and enforcing the provisions of this article, the Department of Public Safety may hire necessary and qualified personnel and purchase the necessary equipment and vehicles."
Name change
SECTION 1459. Section 56-5-5420 of the 1976 Code is amended to read:
"Section 56-5-5420. On the recommendation of the county legislative delegation, the Department of Public Safety shall maintain at the county highway maintenance shop in each county an inspection station and shall inspect and issue certificates at such shop at the same cost to the motor vehicle owner as is charged by private garages, provided, that if it is not feasible to use the maintenance shop then some other suitable existing facility in the county may be used. Provided, the above shall apply when there are less than five licensed inspection stations in a county.
Provided, that any owner of a motor vehicle may file a complaint, after his vehicle has been inspected by an official inspection station, either before or after repairs have been made as required by the inspection, with the department, and the department shall forthwith investigate such complaint and may revoke or suspend the license of any official inspection station found to be improperly conducted and may require the refund to the owner of the inspection fee, if it is determined that the complaint was justified."
Name change
SECTION 1460. Section 56-5-5430 of the 1976 Code is amended to read:
"Section 56-5-5430. Any person whose registration has been suspended or any official inspection station or mechanic whose license has been suspended or revoked under the provisions of Sections 56-5-5350 to 56-5-5440, may, within ten days after notice of suspension or within ten days after notice of the result of the review, if such review is requested and held, apply to the resident or presiding circuit judge of the circuit in which the person or station is located, or any other court of competent jurisdiction in which the person or station is located, either at chambers or open court, for a review upon the record, certified to by the Director of the Department of Public Safety, to determine if the action taken by the department is lawful and in accordance with the provisions of Sections 56-5-5350 to 56-5-5440."
Name change
SECTION 1461. Section 56-5-5670 of the 1976 Code is amended to read:
"Section 56-5-5670. (a) Any demolisher who purchases or otherwise acquires a vehicle for purposes of wrecking, dismantling or demolition shall not be required to obtain a certificate of title for such vehicle in his own name. After the vehicle has been demolished, processed, or changed so that it physically is no longer a motor vehicle, the demolisher shall surrender for cancellation the certificate of title or auction sales receipt or disposal authority certificate. The Department of Revenue and Taxation shall issue such forms, rules and regulations governing the surrender of auction sales receipts, disposal authority certificates, and certificates of title as are appropriate.
(b) A demolisher shall keep an accurate and complete record of all abandoned motor vehicles purchased or received by him in the course of his business. These records shall contain the name and address of the person from whom each vehicle was purchased or received and the date when such purchases or receipts occurred. The records shall be open for inspection by any police officer at any time during normal business hours. Any record required by this section shall be kept by the demolisher for at least one year after the transaction to which it applies."
Abandoned vehicles; allocation of functions
SECTION 1462. Section 56-5-5810 of the 1976 Code is amended to read:
"Section 56-5-5810. For the purposes of this article:
(a) `Officer' means any state, county or municipal law enforcement officer, including county sanitation officers.
(b) `Motor vehicle' means every device by which a person or property may be transported or drawn upon a highway by mechanical means.
(c) `Abandoned vehicle' means a motor vehicle that is inoperable or is left unattended on public property for more than seventy-two hours, or a motor vehicle that has remained illegally on private or public property for a period of more than seven days without the consent of the owner or person in control of the property.
(d) `Derelict vehicle' means a motor vehicle:
(1) whose certificate of registration has expired and the registered and legal owner no longer resides at the address listed on the last certificate of registration on record with the Department of Revenue and Taxation, or
(2) whose major parts have been removed so as to render the motor vehicle inoperable and incapable of passing inspection as required under existing standards; or
(3) manufacturer's serial plates, motor vehicle identification numbers, license number plates and any other means of identification have been removed so as to nullify efforts to locate or identify the registered and legal owner; or
(4) whose registered and legal owner of record disclaims ownership or releases his rights thereto; or
(5) which is more than seven years old and does not bear a current license as required by the Department of Revenue and Taxation.
(e) `Demolisher' means any person, firm or corporation whose business is to convert a motor vehicle into processed scrap or scrap metal or otherwise to wreck or dismantle such a motor vehicle.
(f) `Director' means the Director of the Department of Revenue and Taxation.
(g) `Department' means the Department of Public Safety.
(h) `Colored tag' means any type of notice affixed to an abandoned or derelict motor vehicle advising the owner or the person in possession that it has been declared an abandoned or derelict motor vehicle and will be treated as such. The tag shall be of sufficient size to be easily discernable and shall contain such information as the director deems necessary to carry out the provisions of this article.
(i) `Vehicle recycling' means the process whereby discarded motor vehicles are collected and then processed by shredding, bailing or shearing to produce processed scrap iron and steel.
(j) `Salvage yard' means a business or a person who holds a license issued by the Department of Revenue and Taxation required of all retailers, possesses ten or more derelict motor vehicles, regularly engages in buying and selling used motor vehicle parts and owns the necessary equipment to transport wrecked and derelict motor vehicles."
Name change; crediting of funds
SECTION 1463. Section 56-5-5830 of the 1976 Code is amended to read:
"Section 56-5-5830. The director is vested with the power and is charged with the duties of administering the provisions of this article. The department may adopt such rules and regulations as may be necessary to carry out the provisions of this article.
All county and municipal officers shall cooperate with and assist the director in enforcing this article."
Title change
SECTION 1464. Section 56-5-5850 of the 1976 Code is amended to read:
"Section 56-5-5850. (a) When any motor vehicle is derelict or abandoned, the director shall cause a colored tag to be placed on the motor vehicle which shall be notice to the owner, the person in possession of the motor vehicle or any lien holder that it is considered to be derelict or abandoned and is subject to forfeiture to the State.
(b) If the motor vehicle is determined to be valued at less than one hundred dollars, the tag shall so state and shall serve as the only legal notice that unless the motor vehicle is removed within seven days from the date of the tag, it shall become property of the State, shall be removed and sold for recycling purposes and all proceeds derived from the sale shall be deposited into the state general fund established for the purpose of administering the provisions of this article.
(c) If the value of the motor vehicle is determined to be more than one hundred dollars, the colored tag shall so state and shall serve as the only legal notice that if the vehicle is not removed within seven days from the date of the tag that it will be removed to a designated place to be sold. After the motor vehicle is removed the director shall notify in writing by registered or certified mail, return receipt requested, the person in whose name the motor vehicle was last registered at the last address reflected in the department's records and to any lienholder of record, by registered or certified mail, return receipt requested, that the motor vehicle is being held, designating the place where it is being held and that if it is not redeemed within thirty days from the date of the notice by paying all cost of removal and storage it shall be sold for recycling purposes or for such other purposes as the director deems advisable to ensure obtaining the highest possible return from the sale. The proceeds of the sale shall be deposited in the state general fund established for the purposes of administering the provisions of this article.
(d) If the value of the motor vehicle is determined to be more than one hundred dollars and if the identity of the last registered owner cannot be determined or if the registration contains no address for the owner, or if it is impossible to determine with reasonable certainty the identification and addresses of any lien holders, notice by one publication in a newspaper of general circulation in the area where the motor vehicle was located shall be sufficient to meet all requirements of notice pursuant to this article. The notice of publication may contain multiple listings of motor vehicles. Twenty days after date of publication the advertised motor vehicle may be sold. The proceeds of such sale shall be deposited in the state general fund established for the purpose of administering the provisions of this article.
(e) Any notice sent by mail or any newspaper notice published under the provisions of this section shall contain the following if it is obtainable: the year, make, model and serial number of the abandoned motor vehicle.
(f) All officers defined in this article may appraise or determine the value of derelict or abandoned motor vehicles for the purposes of this article."
Title change
SECTION 1465. Section 56-5-5860 of the 1976 Code is amended to read:
"Section 56-5-5860. Title to all motor vehicles sold or disposed of in accordance with this article shall vest in the State. All manufacturer's serial number plates and any other identification numbers for all motor vehicles sold to any person other than a demolisher shall at the time of the sale be turned in to the department for destruction. Any demolisher purchasing or acquiring any vehicle hereunder shall, under oath, state to the department that the vehicles purchased or acquired by it have been shredded or recycled.
The director shall remove and destroy all departmental records relating to such motor vehicles in such method and manner as he may prescribe; provided, that such records shall be retained for a minimum of six months from the date of each sale."
Title change
SECTION 1466. Section 56-5-5870 of the 1976 Code is amended to read:
"Section 56-5-5870. The director may contract with any federal, other state, county or municipal authority or private enterprise for tagging, collection, storage, transportation or any other services necessary to prepare derelict or abandoned motor vehicles for recycling or other methods of disposal. Publicly owned properties, when available, shall be provided as temporary collecting areas for the motor vehicles defined herein. The director may sell derelict or abandoned motor vehicles or if he deems it more advisable, may contract with private enterprises for the purchase of such motor vehicles for recycling."
Name change
SECTION 1467. Section 56-5-6140 of the 1976 Code is amended to read:
"Section 56-5-6140. The department, within ten days after notice of a moving traffic violation by a person under the age of eighteen years, shall mail a copy of the charges to the owner of the vehicle used in the violation."
Definition of "Department"
SECTION 1468. Section 56-7-10 of the 1976 Code is amended to read:
"Section 56-7-10. There will be a uniform traffic ticket used by all law enforcement officers in arrests for traffic offenses and for the following additional offenses:
Offense Citation
Interfering with Police
Officer Serving Process Section 16-5-50
Dumping Trash on Highway/
Private Property Section 16-11-700
Indecent Exposure Section 16-15-130
Disorderly Conduct Section 16-17-530
Discharging Fireworks from
Motor Vehicle Section 23-35-120
Damaging Highway Section 57-7-10
Place Glass, Nails, Etc.
on Highway Section 57-7-20
Obstruction of Highway by
Railroad Cars, Etc. Section 57-7-240
Signs Permitted on Interstate Section 57-25-140
Brown Bagging Section 61-5-20
Drinking Liquors in
Public Conveyance Section 61-13-360
Poles Dragging on Highway Section 57-7-80
Open Container Section 61-9-87
Purchase or Possession
of Beer or Wine by a
Person Under Age Section 20-7-370
Purchase or Possession of
Alcoholic Liquor by A
Person Under Age Twenty-One Section 20-7-380
Unlawful Possession and
Consumption of
Alcoholic Liquors Section 61-5-30
Sale of Beer or Wine on
Which Tax Has Not Been Paid Section 61-9-20
Falsification of Age to
Purchase Beer or Wine Section 61-9-50
Unlawful Purchase of Beer
or Wine for A Person Who
Cannot Legally Buy Section 61-9-60
Unlawful Sale or Purchase
of Beer or Wine, Giving
False Information as to
Age, Buying Beer or Wine
Unlawfully for Another Section 61-9-85
Employment of a Person Under
the Age of Twenty-One As
An Employee in Retail or
Wholesale or Manufacturing
Liquor Business Section 61-13-340
Failure to Remove Doors from
Abandoned Refrigerators Section 16-3-1010
Malicious Injury to Animals
or Personal Property Section 16-11-510
Timber, Logs, or Lumber
Cutting, Removing,
Transporting Without
Permission, Valued at Less
Than Fifty Dollars Section 16-11-580
Littering Section 16-11-700
Larceny of a Bicycle Valued
at Less Than One Hundred
Dollars Section 16-13-80
Cock Fighting Section 16-17-650
Ticket Scalping Section 16-17-710
Glue Sniffing Section 44-53-1110
Trespassing Section 16-11-755
Trespassing Section 16-11-600
Trespassing Section 16-11-610
Trespassing Section 16-11-620
Negligent Operation of
Watercraft; Operation
of Watercraft While Under
Influence of Alcohol
or Drugs Section 50-21-110
Negligence of Boat Livery to
Provide Proper Equipment
and Registration Section 50-21-120
Interference with Aids to
Navigation or Regulatory
Markers or Operation
of Watercraft in
Prohibited Area Section 50-21-170
Operation of Watercraft Without
a Certificate of Title Section 50-23-190
Parking on private property
without permission Section 16-11-760.
No other ticket may be used for these offenses. The service of the uniform traffic ticket shall vest all traffic, recorders', and magistrates' courts with jurisdiction to hear and to dispose of the charge for which the ticket was issued and served. This ticket will be designed by the department and approved by the Attorney General.
For purposes of this chapter `department' means Department of Public Safety."
Name change
SECTION 1469. Section 56-7-20 of the 1976 Code is amended to read:
"Section 56-7-20. For purposes of this chapter, a traffic ticket shall consist of five copies, one of which shall be blue and shall be given to the vehicle operator who is the alleged traffic violator; one of which shall be yellow and shall be dispatched to the department for its records; one of which shall be white and shall be dispatched to the police agency of which the arresting officer is a part; one of which shall be green and shall be retained by the trial officer for his records; and one of which shall be pink and shall be dispatched by the police agency to the department for purposes of audit. Each ticket shall have a unique identifying number."
Name change
SECTION 1470. Section 56-7-30 of the 1976 Code is amended to read:
"Section 56-7-30. The department shall have the traffic tickets printed. Police agencies shall order tickets from the department and shall record the identifying numbers of the tickets received by them. The cost of the tickets shall be paid by the police agency. The audit copy and the department records copy shall be forwarded to the department within ten days of the disposition of the case by final trial court action or by nolle prosequi. The head of each police agency shall be responsible for the forwarding of the audit copies and for conducting an annual inventory on December thirty-first of all tickets received but not yet disposed of by final trial court action or by nolle prosequi and for forwarding the results of the inventory on a form prescribed by the department to the department within ten days of the completion of the inventory."
Name change; obsolete reference deleted
SECTION 1471. Section 56-7-50 of the 1976 Code is amended to read:
"Section 56-7-50. The provisions of this chapter shall not apply to the South Carolina Department of Natural Resources or to any of its agents."
"Department" redefined
SECTION 1472. Section 56-9-20(2) of the 1976 Code is amended to read:
"(2) `Department' means the Department of Public Safety, acting directly or through its duly authorized officers and agents."
Name change
SECTION 1473. Section 56-10-10 of the 1976 Code is amended to read:
"Section 56-10-10. Every owner of a motor vehicle required to be registered in this State shall maintain the security required by Section 56-10-20 with respect to each such motor vehicle owned by him throughout the period the registration is in effect. No certificate of registration may be issued or transferred to an owner by the Director of the Department of Revenue and Taxation unless the owner or prospective owner produces satisfactory evidence that the security is in effect, including the name of the owner's automobile liability insurer, the name of the agent, the identification number of the insurance policy, and the effective dates of the policy, except in cases where other security is approved."
Name change
SECTION 1474. Section 56-10-20 of the 1976 Code is amended to read:
"Section 56-10-20. The security required under this chapter is a policy or policies written by insurers authorized to write such policies in South Carolina providing for at least (1) the minimum coverages specified in Sections 38-77-140 through 38-77-230 and (2) the benefits required under Sections 38-77-240, 38-77-250, and 38-77-260. However, the Director of the Department of Public Safety may approve and accept another form of security in lieu of such a liability insurance policy if he finds that such other form of security is adequate to provide and does in fact provide the benefits required by this chapter."
Name change
SECTION 1475. Section 56-10-40 of the 1976 Code is amended to read:
"Section 56-10-40. Every insurer writing automobile liability insurance in this State and every provider of other security approved and accepted by the Director of the Department of Public Safety in lieu of such insurance shall immediately notify the Director of the Department of Public Safety of the lapse or termination of any such insurance or security issued to or provided for a resident of this State in the following circumstances:
(1) the lapse or termination of such insurance or security occurs within three months of issuance provided that this subsection only applies to new policies, and not renewal or replacement policies; or
(2) the lapse or termination occurs after three months for a resident who fails one or more of the objective standards prescribed in Section 38-73-455.
This notification must be in writing or magnetic media in a manner considered satisfactory to the department. Upon receipt of any such notice the Director of the Department of Public Safety shall make a reasonable effort to notify the person that his certificate of registration has been suspended and shall recover the certificate from such person and the motor vehicle registration plates from the vehicles concerned."
Name change
SECTION 1476. Section 56-10-45 of the 1976 Code is amended to read:
"Section 56-10-45. For the purpose of recovering motor vehicle registration plates as required by Section 56-10-40 of the 1976 Code, the Department of Public Safety may contract with or make working arrangements with local law enforcement agencies including sheriffs and municipal law enforcement departments for them to confiscate these plates, upon a contract or working arrangement being agreed to. The local law enforcement agencies are authorized to confiscate these plates. The local law enforcement agencies must be paid for this service in the manner agreed upon between them and the director from funds of the Department of Public Safety which are to be used for this purpose."
"Department" defined
SECTION 1477. Section 56-10-210(3) of the 1976 Code is amended to read:
"(3) `Department' means the Department of Public Safety."
Name change
SECTION 1478. Section 56-10-220 of the 1976 Code is amended to read:
"Section 56-10-220. Every person applying for registration for a motor vehicle shall at the time of such registration and licensing declare the vehicle to be an insured motor vehicle under the penalty set forth in Section 56-10-260 and shall execute and furnish to the Department of Revenue and Taxation his certificate that such motor vehicle is an insured motor vehicle and that he will maintain insurance thereon during the registration period. The certificate must be in the form prescribed by the department. The department may require any registered owner or any applicant for registration and licensing of a motor vehicle declared to be an insured motor vehicle to submit a certificate of insurance executed by an authorized agent or representative of an insurance company authorized to do business in this State. Such certificate must also be in a form prescribed by the department."
Name change
SECTION 1479. The words beginning after (2) of Section 56-10-240 are amended to read:
"The Department of Revenue and Taxation, in its discretion, may authorize insurers to utilize alternative methods of providing notice of cancellation of or refusal to renew to the department. The department may not reissue registration certificates and license plates for that vehicle until satisfactory evidence has been filed by the owner or by the insurer who gave the cancellation or refusal to renew notice to the department that the vehicle is insured. Upon receiving information to the effect that a policy is canceled or otherwise terminated on a motor vehicle registered in South Carolina, the department shall suspend the license plates and registration certificate and shall initiate action as required within fifteen days of the notice of cancellation to pick up the license plates and registration certificate. A person who has had his license plates and registration certificate suspended by the department, but who at the time of suspension possesses liability insurance coverage sufficient to meet the financial responsibility requirements as set forth in this chapter, has the right to appeal the suspension immediately to the Director of the Department of Insurance. If the Director of the Department of Insurance determines that the person has sufficient liability insurance coverage, he shall notify the Department of Revenue and Taxation, and the suspension is voided immediately. The Department of Revenue and Taxation shall give notice by first class mail of the cancellation or suspension of registration privileges to the vehicle owner at his last known address. However, when license plates are surrendered pursuant to this section, they must be forwarded to the Department of Revenue and Taxation office in the county where the person who surrenders the plates resides."
Name change
SECTION 1480. Section 56-10-245 of the 1976 Code is amended to read:
"Section 56-10-245. Whenever a person furnishes proof of liability insurance, or surrenders or has his registration or license tags confiscated for failure to produce proof of insurance, after the department receives notice of the lapse or termination of the required liability insurance, the department shall compare the effective date of the lapse or termination with the date of the proof of insurance or the date of the confiscation or surrender. If the department determines there was a lapse in the required coverage the department shall assess, in addition to other fines or penalties imposed by the law, a per diem fine in the amount of five dollars. The department shall collect and keep this fine to defer the costs of the financial responsibility program. The fine provided for in this section and the two hundred dollar reinstatement fee pursuant to Section 56-10-240 of the 1976 Code must not be assessed if the person furnishes proof, as documented by his sworn statement, that the motor vehicle upon which the coverage has lapsed or been terminated has not been operated upon the roads, streets, or highways of this State during the lapse or termination, and the lapse or termination is due to military service or illness as documented by a signed physician's statement. The total amount of the fine provided for in this section may not exceed two hundred dollars for a first offense."
Name change
SECTION 1481. Section 56-10-280(A)(2) of the 1976 Code is amended to read:
"(2) The insured produces satisfactory proof from the department that he has sold or otherwise disposed of the insured vehicle or surrendered its tags and registration."
Name change
SECTION 1482. Section 56-10-290 of the 1976 Code is amended to read:
"Section 56-10-290. The administration and enforcement of this article must be by the Department of Public Transportation, and law enforcement officers generally shall also enforce this article within their respective jurisdictions."
"Department" defined
SECTION 1483. Section 56-15-10 is amended by adding:
"r. `Department' means Department of Public Safety."
Name change
SECTION 1484. Section 56-15-50 of the 1976 Code is amended to read:
"Section 56-15-50. Every manufacturer shall specify to the dealer the delivery and preparation obligations of its motor vehicle dealers prior to delivery of new motor vehicles to retail buyers. A copy of the delivery and preparation obligations of its motor vehicle dealers and a schedule or statement of the compensation to be paid or credited to its motor vehicle dealers for the work and services they shall be required to perform in connection with such delivery and preparation obligations shall be filed with the department by every motor vehicle manufacturer and shall constitute any such dealer's only responsibility for product liability as between such dealer and such manufacturer. The compensation as set forth on such schedule or statement shall be reasonable and paid or credited as set out in Section 56-15-60."
Name change
SECTION 1485. The first sentence in Section 56-15-320(2) of the 1976 Code is amended to read:
"Each applicant for licensure as a dealer or wholesaler must furnish a surety bond in the penal amount of fifteen thousand dollars on a form to be prescribed by the director of the department."
"Department" defined
SECTION 1486. Section 56-16-10 is amended by adding:
"(r) `Department' means Department of Public Safety."
Name change
SECTION 1487. Section 56-16-20 of the 1976 Code is amended to read:
"Section 56-16-20. Every manufacturer shall specify to the dealer the delivery and preparation obligations of its motorcycle dealers prior to delivery of new motorcycles to retail buyers. A copy of the delivery and preparation obligations of its motorcycle dealers and a schedule or statement of the compensation to be paid or credited to its motorcycle dealers for the work and services they are required to perform in connection with the delivery and preparation obligations must be filed with the department by every motorcycle manufacturer and is a dealer's only responsibility for product liability as between dealer and manufacturer. The compensation as set forth on such schedule or statement must be reasonable and paid or credited as set out in Section 56-16-30."
Name change
SECTION 1488. Section 56-16-110 of the 1976 Code is amended to read:
"Section 56-16-110. Every manufacturer shall specify to the dealer the delivery and preparation obligations of its motorcycle dealers prior to delivery of new motorcycles to retail buyers. A copy of the delivery and preparation obligations of its motorcycle dealers and a schedule or statement of the compensation to be paid or credited to its motorcycle dealers for the work and services they are required to perform in connection with such delivery and preparation obligations must be filed with the department by every motorcycle manufacturer and shall constitute any such dealer's only responsibility for product liability as between the dealer and the manufacturer. The compensation as set forth on the schedule or statement is reasonable and paid or credited as set out in Section 56-16-30."
Name change
SECTION 1489. The first sentence in Section 56-16-150(2) is amended to read:
"Each applicant for licensure as a motorcycle dealer or wholesaler must furnish a surety bond in the penal amount of fifteen thousand dollars on a form to be prescribed by the director of the department."
"Department" defined
SECTION 1490. Section 56-19-10(5) of the 1976 Code is amended to read:
"(5) `Department' means the Department of Revenue and Taxation."
Crediting of fees and penalties
SECTION 1491. Section 56-19-80 of the 1976 Code is amended to read:
"Section 56-19-80. All fees and penalties collected by the department pursuant to the provisions of this chapter or Chapter 21 of Title 16 shall be placed in the state general fund for the administration of this chapter and for other department purposes."
Name change
SECTION 1492. Section 56-19-390(2) of the 1976 Code is amended to read:
"(2) If the interest of the owner is terminated or the vehicle is sold under a security agreement by a lienholder named in the certificate of title, or by foreclosure of a statutory lien or sale pursuant to Section 29-15-10, the transferee shall promptly mail or deliver to the department the last certificate of title or order of court pertaining to sale, his application for a new certificate in the form the department prescribes and an affidavit made by or on behalf of the lienholder that the vehicle was repossessed and that the security interest of the owner was lawfully terminated or sold pursuant to the terms of the security agreement, or by foreclosure of a statutory lien. If the lienholder succeeds to the interest of the owner and holds the vehicle for resale, he need not secure a new certificate of title but, upon transfer to another person, shall promptly mail or deliver to the transferee or to the department the certificate, affidavit and other documents required to be sent to the department by the transferee, and the department shall, upon request, issue a new title free and clear of prior liens and encumbrances."
Name change
SECTION 1493. Section 56-19-425 of the 1976 Code is amended to read:
"Section 56-19-425. The department shall be authorized to charge a fee of three dollars for furnishing the odometer reading or other odometer information concerning a particular vehicle to a requesting party."
Name change; "department" defined
SECTION 1494. Section 56-23-10 of the 1976 Code is amended to read:
"Section 56-23-10. No person shall engage in the business of training or educating persons to drive or operate motor vehicles, or offer such training or education, for which a fee or charge is made, unless and until such person has obtained and holds a valid driver training school license therefor issued by the Department of Public Safety. For purposes of this chapter, department shall mean Department of Public Safety."
Crediting of fees
SECTION 1495. Section 56-23-40 of the 1976 Code is amended to read:
"Section 56-23-40. The annual license fee for each driver training school licensed under the provisions of this chapter shall be fifty dollars, and all such licenses issued shall expire on June thirtieth of the license year of issue. The proceeds from the sale of driver training school licenses shall be placed in the state general fund for the administration and enforcement of this chapter and title."
Name change
SECTION 1496. Section 56-23-70 of the 1976 Code is amended to read:
"Section 56-23-70. Driver instructor qualifying courses may be conducted by recognized college or university or driving school instructors who have successfully completed an approved forty-hour safety education course from a recognized college or university and have acquired an instructor permit from the department. Where such qualifying courses are offered they shall be supervised by the department and shall be offered at least twice a year."
Name change
SECTION 1497. Section 56-23-85 of the 1976 Code is amended to read:
"Section 56-23-85. No person connected with driver training schools or private, parochial or public high schools shall engage in behind the wheel training of persons to drive or operate motor vehicles unless such person has obtained and holds a valid driver instructor permit or temporary driver instructor permit therefor issued by the department.
Appropriate examination for such instructor permit shall be at the discretion of the department. The annual fee for an instructor permit shall be twenty dollars, and all such instructor permits shall expire on June thirtieth. Public high school instructors shall not be required to pay a fee for a permit."
Name change; "department" defined
SECTION 1498. Section 56-25-10 of the 1976 Code is amended to read:
"Section 56-25-10. The Nonresident Traffic Violator Compacts of 1972 and 1977 (compacts) are enacted into law by reference and entered into with all other jurisdictions legally joining therein. The director of the department shall execute all documents and perform all other acts necessary to carry out the provisions of the compacts. The department may promulgate regulations consistent with the provisions of this chapter and in accordance with the provisions of Chapter 23 of Title 1 (the Administrative Procedures Act).
The department shall maintain a current list of those jurisdictions which have entered into the compacts. Such list and copies of the compacts shall from time to time be disseminated to those agencies and individuals who are responsible for enforcement of their provisions. For purposes of this chapter `department' means Department of Public Safety."
"Department" defined
SECTION 1499. Section 56-27-10(c) of the 1976 Code is amended to read:
"(c) `Department' means the Department of Public Safety."
Name change
SECTION 1500. Section 56-29-20(5) of the 1976 Code is amended to read:
"(5) `Vehicle identification number' means a number, a letter, a character, a datum, a derivative, or a combination thereof, used by the manufacturer or the Motor Vehicle Division of the Department of Revenue and Taxation the purpose of uniquely identifying a motor vehicle or motor vehicle part."
Name change
SECTION 1501. Section 56-29-50(E)(1), (I), and (M) of the 1976 Code is amended to read:
"(E)(1) The circuit solicitor shall give notice of the forfeiture proceeding by mailing a copy of the complaint in the forfeiture proceeding to each person whose right, title, or interest is of record in the Motor Vehicle Division of the Department of Revenue and Taxation, or any other department of the State, or any other state or territory of the United States, or of the federal government if the property is required to be registered in the department.
(I) No motor vehicle or motor vehicle part may be forfeited under this section solely on the basis that it is unidentifiable. Instead of forfeiture, any seized motor vehicle or motor vehicle part which is unidentifiable must be the subject of a written report sent by the seizing agency to the Motor Vehicle Division of the Department of Revenue and Taxation, which report must include a description of the motor vehicle or motor vehicle part, its color, if any, thedate, time, and place of its seizure, the name of the person from whose possession or control it was seized, the grounds for its seizure, and the location where it is held or stored.
(M) When an applicant for a certificate of title or salvage certificate presents to the Motor Vehicle Division of the Department of Revenue and Taxation proof that the applicant purchased or acquired a motor vehicle at the public sale conducted pursuant to this section and that fact is attested to by the seizing agency, the division shall issue a certificate of title, or salvage certificate for the motor vehicle upon receipt of the statutory fee, properly executed application for a certificate of title, or other certificate of ownership, and the affidavit of the seizing agency that a state-assigned number was applied for and affixed to the motor vehicle prior to the time that the motor vehicle was released by the seizing agency to the purchaser."
Name change
SECTION 1502. Sections 56-31-50(C), (D), and (E) of the 1976 Code are amended to read:
"(C) On February fifteenth of each year all rental companies engaged in the business of renting private passenger motor vehicles which collect surcharges pursuant to this section shall file a report with the Department of Revenue and Taxation stating the total amount of South Carolina personal property taxes on private passenger motor vehicles paid in the previouscalendar year, the total amount of private passenger motor vehicle rental revenues earned on rentals in South Carolina for the previous calendar year, and the amount by which the total amount of the surcharges for the previous year exceeds the total amount of personal property taxes on private passenger motor vehicles paid for the previous calendar year. All surcharge revenues collected in excess of the total amount of personal property taxes on private passenger motor vehicles must be remitted to the Department of Revenue and Taxation for deposit in the state general fund.
(D) Any rental company which makes a false report to the Department of Revenue and Taxation with the intent to misrepresent the amount of personal property taxes on private passenger motor vehicles paid or the amount of surcharges collected is guilty of a misdemeanor and, upon conviction, must be punished by a fine not exceeding one thousand dollars or by a term of imprisonment not exceeding one year or both. Each violation constitutes a separate offense.
(E) The South Carolina Department of Revenue and Taxation shall promulgate those regulations necessary to implement the provisions of this section and shall provide the necessary forms to meet the filing requirements of this section."
Department restructured
SECTION 1503. Chapter 1, Title 57 of the 1976 Code is amended to read:
"Article 1
Department of Transportation
Section 57-1-10. For the purposes of this title, the following words, phrases, and terms are defined as follows:
(1) `Commission' means the administrative and governing body of the Department of Transportation.
(2) `Department' means the Department of Transportation (DOT).
(3) `Director' means the chief administrative officer of the Department of Transportation.
Section 57-1-20. The Department of Transportation is established as an administrative agency of state government which is comprised of a Division of Mass Transit; a Division of Construction Engineering and Planning; and a Division of Finance and Administration. Each division of the Department of Transportation shall have such functions and powers as provided for by law.
Section 57-1-30. The department shall have as its functions and purposes the systematic planning, construction, maintenance, and operation of the state highway system and the development of a statewide mass transit system that is consistent with the needs and desires of the public.
The department shall coordinate all state and federal programs relating to highways among all departments, agencies, and other bodies politic and legally constituted agencies of this State and the performance of such other duties and matters as may be delegated to it pursuant to law. The goal of the department is to provide adequate, safe, and efficient transportation services for the movement of people and goods.
Section 57-1-40. No member of the commission, employee of the department, or agent of the department, acting for or on behalf of the department or commission, shall accept or agree to accept, receive or agree to receive, or ask or solicit, either directly or indirectly, and any person who shall give or offer to give or promise or cause or procure to be promised, offered, or given, either directly or indirectly, to any member of the commission, employee of the department or agent of the department acting for or on behalf of the commission or department:
(a) any monies;
(b) any contract, promise, undertaking, obligation, gratuity, or security for the payment of money or for the delivery or conveyance of anything of value;
(c) any political appointment or influence, present, or reward;
(d) any employment; or
(e) any other thing of value, with the intent to have his decision or action on any question, matter, cause, or proceeding which may at the time be pending or which may by law be brought before him in his official capacity or in his place of trust or profit influenced thereby, is guilty of a misdemeanor and, upon conviction, must be imprisoned for not less than one year nor more than five years and shall forever after be disqualified from holding any office of trust or profit under the Constitution or laws of this State.
Section 57-1-50. The assent of the State is hereby given to the terms and provisions of any act providing for federal aid to the states for the construction of highways and other related transportation projects. The good faith of the State is hereby pledged to provide sufficient funds to meet the requirements of said federal act, so as to acquire the benefits thereof.
Section 57-1-60. The Governor, in addition to other duties and responsibilities conferred upon him by the Constitution and laws of this State, is charged with the responsibility for the administration of the state's highway safety programs and is further charged with the duty of contracting and doing all other things necessary on behalf of this State and, in so doing, to work with federal and state agencies, agencies private and public, interested organizations, and with individuals to effectuate that purpose. The Governor shall be the official of this State having the ultimate responsibility for dealing with the federal government with respect to highway safety transportation programs and activities. To that end the Governor shall coordinate the activities of any and all departments and agencies of this State and its subdivisions.
Section 57-1-70. It is the sense of the General Assembly that the Department of Transportation should comply with Section 105(f) of the Federal Surface Transportation Assistance Act of 1982 (STAA-1982). The department is directed to effectuate and assure the compliance through contract documents and regulations as may be necessary and such input from the Governor's Office (Office of Small and Minority Business Assistance) in the promulgation of the regulations."
Highway commission restructured
SECTION 1504. Chapter 1, Title 57 of the 1976 Code is amended by adding:
"Article 3
Commission of the Department of Transportation
Section 57-1-310. The congressional districts of this State are constituted and created Department of Transportation districts of the State, designated by numbers corresponding to the numbers of the respective congressional districts. The Commission of the Department of Transportation shall be composed of one member from each transportation district elected by the delegations of the congressional district and one member appointed by the Governor, upon the advice and consent of the Senate, from the State at large. Such elections or appointment, as the case may be, shall take into account race and gender so as to represent, to the greatest extent possible, all segments of the population of the State; however, consideration of these factors in making an appointment or in an election in no way creates a cause of action or basis for an employee grievance for a person appointed or elected or for a person who fails to be appointed or elected.
Section 57-1-320. (A) A county that is divided among two or more Department of Transportation districts, for purposes of electing a commission member, is deemed to be considered in the district which contains the largest number of residents from that county.
(B) No county within a Department of Transportation district shall have a resident commission member for more than one consecutive term and in no event shall any two persons from the same county serve as a commission member simultaneously except as provided hereinafter.
Section 57-1-325. Legislators residing in the congressional district shall meet upon written call of a majority of the members of the delegation of each district at a time and place to be designated in the call for the purpose of electing a commissioner to represent the district. A majority present, either in person or by written proxy, of the delegation from a given congressional district constitute a quorum for the purpose of electing a district commissioner. No person may be elected commissioner who fails to receive a majority vote of the members of the delegation.
The delegation must be organized by the election of a chairman and a secretary, and the delegations of each congressional district shall adopt such rules as they consider proper to govern the election. Any absentee may vote by written proxy. When the election is completed, the chairman and the secretary of the delegation shall immediately transmit the name of the person elected to the Secretary of State who shall issue to the person, after he has taken the usual oath of office, a certificate of election as commissioner. The Governor shall thereupon issue a commission to the person, and pending the issuance of the commission the certificate of election is sufficient warrant to the person to perform all of the duties and functions of his office as commissioner. Each commissioner shall serve until his successor is elected and qualified.
Section 57-1-330. (A) Beginning February 15, 1994, commissioners must be elected by the legislative delegation of each congressional district. For the purposes of electing a commission member, a legislator shall vote only in the congressional district in which he resides. All commission members must serve for a term of office of four years which expires on February fifteenth of the appropriate year. Commissioners shall continue to serve until their successors are elected. Any vacancy occurring in the office of commissioner shall be filled by election in the manner provided in this article for the unexpired term only. No person is eligible to serve as a commission member who is not a resident of that district at the time of his appointment, except that the at-large commission member may be appointed from any county in the State regardless of whether another commissioner is serving from that county. Failure by a commission member to maintain residency in the district for which he is elected shall result in the forfeiture of his office. The at-large commission member, upon confirmation, shall serve as chairman of the commission.
(B) The terms of the initial members of the commission appointed from congressional districts are as follows:
(1) commission members appointed to represent odd-numbered congressional districts - two years; and
(2) commission members appointed to represent even-numbered congressional districts - four years.
(C) The at-large commissioner shall serve at the pleasure of the Governor.
Section 57-1-340. Each commission member, within thirty days after his election or appointment, and before entering upon the discharge of the duties of his office, shall take, subscribe, and file with the Secretary of State the oath of office prescribed by the Constitution of the State.
Section 57-1-350. (A) The commission may adopt an official seal for use on official documents of the department.
(B) The commission shall adopt its own rules and procedures and may select such additional officers to serve such terms as the commission may designate.
(C) Commissioners must be reimbursed for official expenses as provided by law for members of state boards and commissions as established in the annual general appropriation act."
Director of Department of Transportation
SECTION 1505. Chapter 1, Title 57 of the 1976 Code is amended by adding:
"Article 5
Director of the Department of Transportation
and Other Employees
Section 57-1-410. The commission shall employ a director who shall serve at the pleasure of the commission. A person appointed to this position shall be a citizen of practical and successful business and executive ability who has a knowledge in the field of transportation. The director shall receive such compensation as may be established under the provisions of Section 8-11-160 and for which funds have been authorized in the general appropriation act.
Section 57-1-430. (A) The director must carry out the policies of the commission and administer the affairs of the department and may exercise all powers belonging to the commission within the guidelines and policies established by the commission, when the commission is not in session. He must represent the department in its dealings with other state agencies, local governments, special districts, and the federal government.
(B) For each division, the director may employ such personnel and prescribe their duties, powers, and functions as he considers necessary and as may be authorized by statute and for which funds have been authorized in the annual general appropriation act.
Section 57-1-440. The director shall have the exclusive authority to employ a chief counsel and such staff attorneys and support staff as are necessary to represent the department in legal matters, condemnation procedures, and other such litigation. Any extra legal services that may be required shall be performed by attorneys selected by the director. The department is authorized to retain independent adjusters for purposes of investigating and adjusting claims and suits resulting from motor vehicle damage and personal injury damage programs involving department liability exposure and recovery potential. Expenses for the administration and implementation of this section shall be paid for from the state highway fund.
Section 57-1-450. The director shall appoint a deputy director for each division of the department who shall serve at the pleasure of the director. Each deputy director may receive compensation as established under the provisions of Section 8-11-160 and for which funds have been authorized in the general appropriation act.
Section 57-1-490. The department shall be audited by a certified public accountant or firm of certified public accountants once each year to be designated by the State Auditor. The designated accountant or firm of accountants shall issue audited financial statements in accordance with generally accepted accounting principles, and such financial statements shall be made available annually by October fifteenth to the General Assembly. The costs and expenses of the audit must be paid by the department out of its funds."
Department restructured into divisions
SECTION 1506. Article 1, Chapter 3, Title 57 of the 1976 Code is amended to read:
"Article 1
Administration of the Department of Transportation
Section 57-3-10. The Department of Transportation must be divided into such divisions as the commission may prescribe but must consist of the following principal divisions: finance and administration; construction, engineering, and planning; and mass transit. The commission may establish other divisions, or ancillary or service divisions as may be necessary for the efficient and economic operation of the division and to carry out the functions and purposes of the division.
Section 57-3-20. The responsibilities and duties of the following division deputy directors must include, but not be limited to, the following:
(1) division deputy director for finance and administration:
a. financial planning and management;
b. accounting systems necessary to comply with all federal and/or state laws and/or regulations as well as all policies established by the Comptroller General; and
c. administrative functions, including recording proceedings of the commission and developing policy and procedures to ensure compliance with these policies and procedures.
(2) division deputy director for construction, engineering, and planning:
a. development of statewide strategic highway plans; and
b. directs highway engineering activities, including construction, design, construction oversight, and maintenance of state highways.
(3) division deputy director for mass transit:
a. development of a statewide mass transit system; and
b. coordinate the preservation and revitalization of existing rail corridors.
Section 57-3-40. (A) The Division of Mass Transit must develop and coordinate a general mass transit program and policy for the State in order to encourage the efficient development, implementation, operation, evaluation, and monitoring of mass transit systems, both public and private.
(B) The division is further designated as the agency of the State principally responsible for preserving railroad rights-of-way for future use, and coordinating rail passenger service and high-speed rail planning and development. This authority includes, but is not limited to, the power to apply for and to receive state, federal, or other funds for rail passenger service, high-speed rail planning and development, bus passenger service, and rail corridor preservation and revitalization programs.
(C) All departments, boards, public authorities, or other agencies of the State or its political subdivisions, local government, transportation authorities, and other local public entities must cooperate with the department, provide assistance, data, and advice upon request and must reimburse any such entity necessary cost in the event of any expense. This authority does not preclude another governmental entity, public or private organization, or individual from entering into a contract or agreement concerning the purposes set forth in this section.
(D) The division must develop and annually submit by February first of each year a full, printed, detailed report to the House Education and Public Works Committee and the Senate Transportation Committee showing an analysis of:
(1) the division's accomplishments in the past year;
(2) a five year plan detailing future needs and goals of the State as it relates to all forms of mass transit;
(3) a plan for funding and receiving federal matching funds or other funds as may be available; and
(4) a state railroad corridor preservation and revitalization plan.
(E) A railroad right-of-way or corridor held for railroad right-of-way preservation may be used for interim public purposes compatible with preservation of the corridor for future transportation use. A railroad corridor held for railroad right-of-way preservation may not be considered abandoned for the purpose of any law.
(F) All powers, duties, and responsibilities of the Interagency Council on Public Transportation are devolved upon the Division of Mass Transit.
Section 57-3-50. The commission may establish such highway districts as in its opinion shall be necessary for the proper and efficient performance of its duties. The commission, every ten years, must review the number of highway districts and the territory embraced within the districts and make such changes as may be necessary for the proper and efficient operation of the districts."
Department of Transportation duties
SECTION 1507. Chapter 3, Title 57 of the 1976 Code is amended by adding:
"Article 2
General Provisions
Section 57-3-110. The Department of Transportation shall have the following duties and powers:
(1) lay out, build, and maintain public highways and bridges, including the exclusive authority to establish design criteria, construction specifications, and standards required to construct and maintain highways and bridges;
(2) acquire such lands, road building materials, and rights-of-way as may be needed for roads and bridges by purchase, gift, or condemnation;
(3) cause the state highways to be marked with appropriate directions for travel and regulate the travel and traffic along such highways, subject to the laws of the State;
(4) number or renumber state highways;
(5) initiate and conduct such programs and pilot projects to further research and development efforts, and to promote training of personnel in the fields of planning, construction, maintenance, and operation of the state highway system;
(6) cooperate with the federal government in the construction of federal-aid highways in the development of improved mass transit service, facilities, equipment, techniques, and methods and in planning and research in connection therewith; and seek and receive such federal aid and assistance as may from time to time become available except for funds designated by statute to be administered by the Chief Executive Officer of the State;
(7) instruct, assist, and cooperate with the agencies, departments, and bodies politic and legally constituted agencies of the State in street, highway, traffic, and mass transit matters when requested to do so, and, if requested by such government authorities, supervise or furnish engineering supervision for the construction and improvement of roads and bridges, provided such duties do not impair the attention to be given the highways in the state highway system;
(8) promulgate such rules and regulations in accordance with the Administrative Procedures Act for the administration and enforcement of the powers delegated to the department by law, which shall have the full force and effect of law;
(9) grant churches the right to cross over, under, along, and upon any public roads or highways and rights-of-way related thereto;
(10) enter into such contracts as may be necessary for the proper discharge of its functions and duties and may sue and be sued thereon;
(11) erect such signs as requested by a local governing body, if the department deems the signs necessary for public safety and welfare, including `Deaf Child' signs and `Crime Watch Area' signs; and
(12) do all other things required or provided by law.
Section 57-3-120. For the purposes of this title, the following words, phrases, and terms are defined as follows:
(1) `Highway', `street', or `road' are general terms denoting a public way for the purpose of vehicular travel, including the entire area within the right-of-way, and the terms shall include roadways, pedestrian facilities, bridges, tunnels, viaducts, drainage structures, and all other facilities commonly considered component parts of highways, streets, or roads.
(2) `Highway district' means the geographic area established by Section 57-3-50.
(3) `Mass transit' shall mean every conveyance of human passengers by bus, rail, or high-speed rail, van, or any other ground surface vehicle which is provided to the general public, or selected groups thereof, on a regular and continuing basis.
(4) `Roadway' shall mean that portion of a highway improved, designed, or ordinarily used for vehicular travel, exclusive of the shoulder or berm. In the event a highway includes two or more separate roadways, the term `roadway' as used herein shall refer to any such roadways separately but not to all such roadways collectively."
Duties and powers relating to highways generally, department name changed
SECTION 1508. Article 7, Chapter 3, Title 57 of the 1976 Code is amended to read:
"Article 7
Powers and Duties Generally
Section 57-3-600. Before a county or municipal corporation may accept a deed to a newly constructed road or agree to maintain a newly constructed road, it shall obtain an affidavit from the donor and the contractor who constructed the road that all construction costs have been paid, that the road complies with all applicable construction specifications and standards for construction, and that the road is free of all encumbrances.
A donor or contractor who knowingly submits a false affidavit affirming that all construction costs have been paid for a road or that a road is free of all encumbrances, or both, is guilty of a misdemeanor and, upon conviction, must be fined not more than two hundred dollars or imprisoned for not more than thirty days.
For the purposes of this section, a `newly constructed road' is one which has been completed within two years of the date of the city's or county's consideration of whether to accept the deed or to maintain a newly constructed road.
Section 57-3-610. Whenever a road, bridge, or other highway facility is dedicated and named in honor of an individual by act or resolution of the General Assembly, the Department of Transportation must be reimbursed all expenses incurred by the department to implement the dedication.
Reimbursement for expenses incurred by the department must first be approved by a majority of each county legislative delegation of the county in which the road, bridge, or facility is located. Reimbursement must be from the State Secondary `C' Apportionment Fund of the county or counties in which the road, bridge, or facility is located, and expenses under this section are limited to five hundred dollars.
Reimbursement for expenses incurred by the department to name and dedicate a highway facility pursuant to a request from other than the General Assembly must be by agreement between the requesting entity and the department.
Section 57-3-630. The department may bring suits in its name, whenever a cause of action shall accrue to the State by reason of the injury, damage, destruction, or obstruction of any road in the state highway system, any bridge, culvert, ditch, causeway, embankment, wharf, tollgate, tollhouse, or other facility or any equipment, apparatus, or property, real or personal, belonging to the state highway system. Suits for the recovery of appropriate damages, and other proceedings incident thereto, shall be instituted in any court of competent jurisdiction, for and in behalf of the State in the name of the department as plaintiff. Complaints and other pleadings requiring verification may be verified by the director or any other person duly authorized by him.
Section 57-3-640. The department may construct and maintain necessary driveways and roads in state parks. All work to be performed by the department pursuant to the provisions of this section shall be with the consent and approval of the Department of Parks, Recreation and Tourism, and such work shall not result in the assumption by the department of any liability whatsoever on account of damages to property, injuries to persons or death growing out of or in any way connected with such work. Such driveways and roads taken over in state parks shall not affect the respective counties' portion of mileage to be taken over by the department under any other statute. The construction and maintenance work by the department authorized by this section shall be paid for from the state highway fund.
Section 57-3-650. (a) Highway construction and maintenance by the department as authorized in this title shall include the authority to acquire strips of land along highways and to landscape and develop the strips and other lands within the highway right-of-way in order to restore, preserve, and enhance the scenic beauty along the highways. The department may construct and maintain on such land public rest and recreational areas or trails, roadside parks, sanitary and other facilities reasonably necessary to accommodate the traveling public.
(b) In order to provide information in the specific interest of the traveling public, the department is authorized to construct and maintain such information centers at the aforesaid recreational and rest areas as it may deem desirable. For the purpose of informing the public of places of interest within the State and providing such other information as may be considered desirable, these centers shall distribute maps, informational directories, and advertising pamphlets. Information centers shall be staffed by persons hired and paid by the Department of Parks, Recreation and Tourism.
(c) The department is authorized to enter into agreements with the United States Secretary of Commerce as provided for in Title 23 of the United States Code, relating to the establishment and operation of information centers at rest and recreational areas, and to take action in the name of the State to comply with the terms of such agreements.
Section 57-3-660. The department may hard surface and otherwise improve such streets, roads, and driveways, including sidewalks, at state institutions as the department, together with the board of trustees or other governing body of any such state institution, may deem necessary. The cost of such improvements shall be paid for out of the state highway fund.
Section 57-3-670. The department may cooperate and enter into contracts with the United States Bureau of Public Roads and do any and all things necessary to carry out the provisions of any Federal-Aid Highway Act, including, but not limited to, the planning, construction, and maintenance of federal-aid highways, access roads, flight strips, and all other eligible projects, regardless of whether such projects are a part of the state highway system and may condemn or otherwise acquire lands necessary for rights-of-way in connection therewith under the procedure prescribed by law in condemning and acquiring lands for state highway purposes.
Section 57-3-680. If any such project to be constructed under the provisions of Section 57-3-670 is not a part of the state highway system, no part of the actual costs of rights-of-way, construction, or maintenance shall be paid for from state highway funds. Any political subdivision having jurisdiction over a project not a part of the state highway system shall deposit with the department its estimated share of the cost of such project before the contract is awarded, except that state highway funds may be advanced to meet current payments to contractors and others when existing agreements provide for reimbursements by the federal government of such funds advanced by the department. Article 13 of Chapter 5 of this title shall not apply to any project that is not a part of the state highway system.
Section 57-3-690. Whenever the department shall with federal funds, undertake the construction of any county road or shall, in anticipation of federal funds becoming available for such purpose, establish the location of any such road, the lawfully authorized officials of the county concerned shall provide, without cost to the department, all necessary rights-of-way for such construction, including lands for borrow and material pits. In order to secure such rights-of-way and other necessary lands such county officials may exercise any or all of the usual powers of condemnation lawfully authorized to be exercised by them in the case of other county roads.
Section 57-3-700. With the approval of the commission, the county officials may designate the department, acting through its agents and employees, as agents of the county in securing necessary rights-of-way and other lands.
Section 57-3-710. All payments to be made or obligated on account of rights-of-way and other lands acquired for the purposes contemplated by Section 57-3-690 shall be made by the county on order of the department. Any person having any claim on account of damages to property, injuries to person, or death growing out of any such construction as is contemplated in said section shall have such right of action against the county concerned as is authorized by law, and the remedy thus afforded shall be exclusive.
Section 57-3-720. The department is authorized to construct and maintain street and road access facilities to state ports shipping and warehousing facilities, airports, railroad marshalling yards, and trucking terminals, the cost of same to be paid from the state highway fund; provided, however, that all such construction and maintenance shall be limited to work on publicly owned property.
Section 57-3-730. The department may cooperate with any drainage district within the State, organized in accordance with the laws of the State, in order to carry drainage canals across state highways. But the cost to be assumed by the department incident to any such crossing shall not exceed the actual cost of the structure necessary to carry the waters of the drainage canal across the state highway.
Section 57-3-750. A full account of each road project shall be kept by the department so that it may ascertain at any time the expenditures or liabilities against all projects. The department shall also keep records of contracts and force account work. The account records, together with all supporting documents, shall be open at all times to the inspection of the Governor, other state officials, and the public.
Section 57-3-760. The department, at the beginning of each regular session of the General Assembly, shall make a full, printed, detailed report to the General Assembly showing an analysis of:
(1) the department's accomplishments in the past year;
(2) a ten-year plan detailing future needs of the State in the fields of planning, construction, maintenance, and operation of the state highway system;
(3) a five-year plan detailing the regulation of traffic which includes the administration and enforcement of traffic, driver, and motor vehicle laws and other laws relating to such subjects, the coordination of state and federal programs relating to mass transportation among the departments, agencies, and other bodies politic and legally constituted agencies in the State; and
(4) a listing of all firms, companies, or businesses of any type doing business with the department and the amount of such contracts entered into by the department.
Section 57-3-770. The department when cleaning or removing dirt and topsoil from ditches or roadbeds along roads, highways, and highway rights-of-way under its jurisdiction is authorized to give this dirt and topsoil to the landowner whose property adjoins the road which is being cleaned. The department is further authorized to haul this dirt and topsoil to a location on the adjoining landowner's property which location is designated by him; provided, that this location must be within one hundred yards of the road being cleaned.
Section 57-3-780. Before building new or expanding existing primary highways, roads, and streets, the department shall consider and make a written determination whether it is financially and physically feasible to include:
(1) high occupancy vehicle lanes, when the construction or expansion is in a metropolitan area;
(2) pedestrian walkways or sidewalks; and
(3) bicycle lanes or paths.
A copy of this determination must be submitted to the State Energy Office."
State highway system, department name changed
SECTION 1509. Article 1, Chapter 5, Title 57 of the 1976 Code is amended to read:
"Article 1
Composition of and Change in System
Section 57-5-10. The state highway system shall consist of a statewide system of connecting highways which shall be constructed by the Department of Transportation and which shall be maintained by the department in a safe and serviceable condition as state highways. The complete state highway system shall mean the system of state highways as now constituted, consisting of the roads, streets and highways heretofore designated as state highways or designated for construction or maintenance by the department pursuant to law, together with the roads, streets and highways heretofore added to the state highway system by the Commission of the Department of Transportation, and such roads, streets and highways as may hereafter be added to the system pursuant to law. Roads and highways in the state highway system are classified into three classifications:
(1) interstate system of highways;
(2) state highway primary system; and
(3) state highway secondary system.
Section 57-5-20. The interstate system of highways shall consist of the segments of highways in South Carolina in the officially designated national system of interstate and defense highways.
Section 57-5-30. The state highway primary system shall consist of a connected system of principal state highways, not to exceed ten thousand miles, connecting centers of population, as determined by the Commission of the Department of Transportation.
Section 57-5-40. The state highway secondary system shall consist of all roads, streets and highways in the state highway system not otherwise designated as highways in the interstate system or the state highway primary system.
Section 57-5-50. The commission may transfer any route or section of route from the state highway secondary system to the state highway primary system, or vice versa, when, in its judgment, such transfer is advisable to better serve the traveling public.
Section 57-5-60. The department may add to the state highway primary system any sections or connections which, in the judgment of the department may be necessary in the proper development of the federal-aid primary highway system or the state highway primary system.
Section 57-5-70. The department shall take over and accept as a part of the state highway secondary system the roads remaining in the various county road systems which have been maintained by the respective counties, or so much mileage thereof as the availability of funds for construction of secondary state highways in a county may justify; provided, that municipal streets which are extensions of state highways may be added to the state highway secondary system in lieu of an equal mileage of county roads. The roads to be placed in the state highway system hereunder shall be selected by the department. Maintenance jurisdiction by the department of roads added to the state highway secondary system pursuant to the provisions of this section shall not commence until construction to state highway standards shall have started.
Section 57-5-80. The department may delete and remove from the state highway secondary system of roads in any county any roads which are of low traffic importance and substitute therefor an equal, or less, mileage of other roads of higher traffic importance as determined by traffic surveys and estimates. Maintenance responsibility for roads deleted and removed from the state highway secondary system pursuant to the provisions of this section shall transfer from the jurisdiction of the department to the jurisdiction of the county or municipality in which such roads are situated, effective upon notice from the department of official action deleting and removing the roads from the state highway system.
Section 57-5-90. The commission may establish such belt lines or spurs as it deems proper and construct and maintain such belt lines and spurs from funds otherwise provided by law for the construction and maintenance of the state highway system, but the total length of such belt lines and spurs to be established or constructed in any county shall not exceed two miles in any one fiscal year; provided, that should the commission fail to establish belt lines or spurs during a fiscal year the allocation to the counties shall be continued from year to year and the mileage shall be cumulative. Provided, further, that any mileage that accumulated prior to June 30, 1972, under this section shall remain to the credit of the county to which it accumulated.
Section 57-5-100. Except as authorized herein, or by other law, the department is hereby prohibited from adding roads to the state highway system.
Section 57-5-110. The Department of Transportation may relocate any section of highways included in the federal-aid primary highway system or the state highway primary system when such relocation is required in order to conform to the standards adopted for the highways comprising such systems.
Section 57-5-120. The department may abandon as a part of the state highway system any section of highway which may be relocated, and every such section so abandoned as a part of the state highway system shall revert to the jurisdiction of the respective appropriate local authorities involved or be abandoned as a public way. But the department, in its discretion, may retain in the system any such relocated section when it serves as a needed connection to the new section or when it serves as a proper part of the state highway system.
Section 57-5-130. Notwithstanding any other provision of law, when the Department of Transportation publishes the name or description of a state road or highway in a newspaper of general circulation, it shall include not only the numerical designation of such road or highway but also a general description of it. In the general description the department, where possible, shall include the designated name of the road or highway and its general location as compared to other roads and highways in the general vicinity.
Section 57-5-140. The state highways designated as parts of the state highway system shall include the sections of such highways lying within the limits of incorporated municipalities, and such sections shall be equally as eligible in all respects to receive the attention of the department for construction, reconstruction, and maintenance as are the sections of the highways lying wholly without incorporated places. But the department shall not reimburse any municipality for any construction performed by such municipality prior to June 13, 1951, nor share in the cost of any construction or improvement made by any municipality on any street or highway prior to the date the road or street so constructed or improved was added to the state highway system.
But nothing in this chapter shall prevent a municipality from undertaking any improvements or performing any maintenance work on state highways in addition to what the department is able to undertake with the available funds. The Department of Transportation shall not, however, be liable for damages to property or injuries to persons, as otherwise provided for in Section 57-5-1810, as a consequence of the negligence by a municipality in such improvements or maintenance work by a municipality.
Section 57-5-150. The entire cost of the rights-of-way for state highway construction in municipalities shall be paid for from the state highway fund, as authorized in Section 57-5-140, on the same basis as rights-of-way are paid for in rural areas, and also that the Department of Transportation shall pay from the state highway fund the entire cost of urban transportation plan projects, including all of the costs of all rights-of-way.
Section 57-5-160. The Department of Transportation is authorized to enter into agreement with the United States Atomic Energy Commission and such other parties as may be necessary to accept and place into the state highway system portions of the highways formerly designated as Nos. 28 and 125 lying within the boundaries of the Savannah River Project. The department, after consultation with the Atomic Energy Commission, shall promulgate rules and regulations governing the manner in which the highway within the Savannah River Project may be utilized by the traveling public, which regulations, when duly promulgated shall have the force of law.
Section 57-5-170. In order to protect the national security, the regulations may include provisions to restrict the area of the highway within the limits of the Savannah River Project to vehicular traffic, capable of maintaining the minimum posted speed limit; to designate any and all points of access to and from the segment of highway lying within the area and may provide for a system of closure at points upon the highway so as to enable the department or Atomic Energy Commission to identify vehicles and individuals using the highway and to enable the Department of Transportation or the Atomic Energy Commission to determine the transit time along the highway within the limits of the area.
Section 57-5-180. Upon execution of an agreement with the Atomic Energy Commission, the Department of Transportation shall file with the Secretary of State a copy of the agreement and shall publicly declare the date on which the highway shall be a part of the state highway system. After such execution, the terms of the agreement shall have full force notwithstanding any other provisions of law relating to highways in this State.
Section 57-5-190. Any person convicted of violating the provisions of Sections 57-5-160 through 57-5-180 may be punished in any court of competent jurisdiction by a fine of not more than one hundred dollars or imprisonment for not more than thirty days."
Rights of way, lands and condemnation, department name changed
SECTION 1510. Article 3, Chapter 5, Title 57 of the 1976 Code is amended to read:
"Article 3
Rights of Way, Lands and Condemnation
Section 57-5-310. The commission and the Department of Transportation may own such real estate, in fee simple or by lease, as shall be deemed necessary for the purpose of facilitating the proper operation of the department or for the building and maintenance of the public highways in the state highway system.
Section 57-5-320. The department may acquire an easement or fee simple title to real property by gift, purchase, condemnation or otherwise as may be necessary, in the judgment of the department, for the construction, maintenance, improvement or safe operation of highways in this State or any section of a state highway or for the purpose of acquiring sand, rock, clay, and other material necessary for the construction of highways, including:
(a) land for drainage ditches and canals that may be needed in order to correct existing land drainage facilities impaired or interfered with by the department in connection with its road improvement work; and
(b) property, either within or without incorporated towns, to be used for borrow pits from which to secure embankment and surfacing materials.
Other property required, as determined by the department, for the construction, maintenance and safe operation of state highways may be acquired by condemnation in the manner described in this article. Provided, however, after condemnation, trial and rendition of verdict by jury there shall be no abandonment by the department without the payment of expenses incurred by the landowner including a reasonable fee to the attorney or attorneys representing the landowner, which fee and expenses shall be set and approved by the trial judge.
Section 57-5-330. The minimum width of the right-of-way required for the construction, maintenance and safe operation of state highways is hereby fixed at sixty-six feet. But the department, in its discretion, may accept a lesser width than sixty-six feet within incorporated towns or where existing structures of a permanent nature would necessarily be moved or damaged in order to afford the full minimum width of sixty-six feet. And the department may acquire such additional width above the minimum herein fixed as in its judgment may be necessary to meet the exigencies of construction, maintenance, and safe operation of any particular highway.
Section 57-5-340. The department shall continuously inventory all of its real property. When, in the judgement of the department any real estate acquired as provided in this chapter is no longer necessary for the proper operation of the department or highway systems, the department shall vigorously attempt to sell the property by advertising for competitive bids in local newspapers or by direct negotiations, but in every case of the sale or transfer of any real estate by the commission or the department, the sale or transfer shall be made public by publishing notice of it in the minutes of the next succeeding meeting of the commission. The commission and the department shall convey by deed, signed by the Director of the Department of Transportation and the Deputy Director of the Division of Finance and Administration, any real estate disposed of under this section. Any funds derived from the sale of surplus property by authority of this section shall be credited to the funding category from which funds were drawn to finance the department's acquisition of the property. However, any funds derived from the sale of right-of-way, which the department has purchased, in excess of the department's cost shall be distributed among the counties as C funds pursuant to Section 12-27-400.
Section 57-5-350. The department shall neither lease nor sell any part of the state highway primary system, rights-of-way or any of the controlled-access highway facilities for commercial enterprise activities, except public utilities, which were acquired by easement. This shall not serve to prevent the sale of surplus property as authorized by Section 57-5-340, nor shall it prevent the sale of any of the properties referred to in this section which were acquired by fee simple deed.
Section 57-5-370. Whenever the department is required or authorized by law to construct or improve streets within municipalities, the municipality or the department may condemn additional land necessary for the improvement of the streets or property within the municipality required for materials with which to construct highway embankments and surfacing.
Section 57-5-380. The department, for the purpose of acquiring property as authorized by Section 57-5-320, may condemn lands, rights-of-way, and easements of railroad, railway, telegraph, or other public service corporations, provided that the condemnation does not impair the ability of the railroad, railway, telegraph, or other public service corporations to operate.
Section 57-5-540. When the department condemns property, the award shall be paid by the department.
Section 57-5-550. All deeds or other instruments conveying, or intended to convey, a right-of-way and the original papers in all condemnation proceedings to acquire a right-of-way for any state highway shall be filed by the department in its offices at Columbia, and a direct index of all such deeds, instruments and records shall be made and kept by the department.
The provisions of this section shall apply to all deeds, instruments and condemnation proceedings in existence on or after June 13, 1951, except such instruments as had actually been recorded prior to said date in the office of the register of mesne conveyances or clerk of court of any county of this State or had prior to said date become a permanent record in any such office.
Section 57-5-570. The department shall maintain in the office of the tax assessor for each of the several counties a copy of all highway plans on which are indicated the widths of the rights-of-way for each road in the related district or county and an alphabetical list of property owners on each road for which rights-of-way have been acquired. These records must be for the convenience of persons making inquiry as to the right of the State in and to the right-of-way for roads constructed by the department in any county. The tax assessors of the several counties shall cooperate with the department in keeping these records current, without charge.
Section 57-5-580. The department may charge, as part of the cost of construction, the costs of rights-of-way necessary in connection with the improvement or construction of any state highway project.
Section 57-5-590. Nothing herein contained shall be construed to divest the county authorities of the right to condemn for highway purposes, but the rights herein granted are concurrent with the rights and powers of governing bodies of counties and they may still condemn property for highway purposes upon the written request of the department.
Section 57-5-600. Whenever the Department of Transportation shall determine that any property previously acquired for right-of-way is not required for either right-of-way or departmental purposes, it may expressly abandon that right-of-way or property or any portion thereof, or may grant written permits to encroach thereon under such rules and regulations as the Department of Transportation may establish. Provided, no city street may be closed under this section without concurrence of the governing body of the municipality, except for interstate routes or controlled-access highways."
Name change
SECTION 1511. Section 57-5-710 of the 1976 Code is amended to read:
"Section 57-5-710. Except as otherwise provided by law, the construction of the state highway system shall be carried on simultaneously in each of the highway districts of the State, and the commission shall determine and arrange the order of the work in a fair and equitable manner among the counties within each highway district."
Name change
SECTION 1512. Section 57-5-720 of the 1976 Code is amended to read:
"Section 57-5-720. The Department of Transportation shall construct the highways in the state highway primary system and the highways in the state highway secondary system to standards commensurate with the amount and types of traffic services to be rendered by the highways in the respective systems, it being the declared policy of the State that the highways in the state highway secondary system shall be constructed by less expensive standards than the highways in the state highway primary system, thus enabling the State to construct a larger mileage of all-weather farm-to-market roads from the available funds."
Name change
SECTION 1513. Section 57-5-760 of the 1976 Code is amended to read:
"Section 57-5-760. The Department of Transportation is hereby authorized to enter into reimbursement agreements with the several counties of the State for the construction of farm-to-market and secondary roads financed through the issuance of bonds and reimbursed from funds accruing under the provisions of Section 12-27-400.
This reimbursement shall be made in annual installments, in amounts not exceeding the annual maturity principal on the bonds to be issued by the county, out of the apportionment of funds accruing for construction in the county under the Department of Transportation's farm-to-market construction program, if so much thereof shall accrue for such construction in the county. The Department of Transportation shall not be obligated to the repayment to the county for any installment due under its reimbursement agreement unless sufficient amounts for such installments shall accrue to the credit of the county under the state farm-to-market construction program. The Department of Transportation shall not be required to pay any interest to the county for funds turned over to the department pursuant to the provisions of this section. If, during any year hereafter, the apportionment to which farm-to-market construction in the county is entitled exceeds the sum required to meet the annual installment of principal of the bonds in that year, then such excess shall be applied by the department as if no reimbursement agreement had been entered into.
The reimbursement agreement shall be upon such other terms and conditions as may be mutually agreed upon by the department and the governing bodies of the several counties."
Name change
SECTION 1514. Section 57-5-870 of the 1976 Code is amended to read:
"Section 57-5-870. The Department of Transportation and the Department of Natural Resources are authorized to enter into cooperative agreements for the construction of access roads and recreation facilities in any county in the State.
The agreements may provide for the Department of Transportation to prepare the necessary plans; provide construction engineering and inspection; and award the necessary construction contracts, subject to the written approval of the Department of Natural Resources. All such contracts shall provide for payments for work performed to be made by the Department of Natural Resources from its funds. Upon completion of the construction work, the Department of Transportation shall reimburse the Department of Natural Resources out of farm-to-market construction funds apportioned to the county in which the work is performed not exceeding the actual cost of constructing any such secondary roads or one half the total cost of the project provided for in the cooperative agreement, whichever is less. The Department of Transportation shall pay from its farm-to-market construction funds apportioned to such county the cost of engineering and inspection. The roads shall become a part of the state highway secondary system upon their completion."
Name change
SECTION 1515. Section 57-5-1010(3) of the 1976 Code is amended to read:
"(3) `Department' means the Department of Transportation."
Name change
SECTION 1516. Section 57-5-1320 1. of the 1976 Code is amended to read:
"1. `Department' means the Department of Transportation;"
Name change
SECTION 1517. Section 57-5-1350 of the 1976 Code is amended to read:
"Section 57-5-1350. Whenever it becomes necessary that monies be raised for a turnpike facility, the commission may make request to the state board for the issuance of turnpike bonds. The request may be in the form of resolution adopted at any regular or special meeting of the commission. The request shall set forth on the face thereof or by schedule attached thereto:
1. the turnpike facility proposed to be constructed;
2. the amount required for feasibility studies, planning, design, right-of-way acquisition, and construction of the turnpike facility;
3. a tentative time schedule setting forth the period of time for which the sum request must be expended;
4. a debt service table showing the estimated annual principal and interest requirements for the requested turnpike bonds;
5. any feasibility study obtained by the commission relating to the proposed turnpike facility;
6. the commission's recommendations relating to any covenant to be made in the bond resolution of the state board respecting competition between the proposed turnpike facility and possible future highways whose construction would have an adverse effect upon the turnpike revenues which would otherwise be derived by the proposed turnpike facility."
Highway bonds eliminated
SECTION 1518. Item 1(c) of Section 57-5-1450 of the 1976 Code is deleted.
Name change
SECTION 1519. The last paragraph in Section 57-5-1450 of the 1976 Code is amended to read:
"The resolution shall further set forth a finding on the part of the state board that the estimate of turnpike facility revenues made by the commission and approved by the state board indicates that collection from turnpike revenues for applicable fiscal years is not less than that required for annual debt service requirements of the requested turnpike bonds."
Name change
SECTION 1520. Section 57-5-1610 of the 1976 Code is amended to read:
"Section 57-5-1610. Except with the approval of the State Budget and Control Board, the Department of Transportation shall not let any highway construction contracts unless reserves for such contracts shall have been provided for out of either (a) current balances in the state highway fund, (b) federal aid obligated for such contracts or (c) estimated revenue balances accruing during the period in which payments are to become due on such contracts; it being the intention of the General Assembly by the enactment of the section that the department shall not let any highway construction contracts which are contingent upon additional tax revenue legislation or upon receipt of the proceeds of anticipated bond sales for the payment of such contracts, unless the amount of highway construction contracts proposed to be let shall receive the approval of the State Budget and Control Board."
Name change
SECTION 1521. Section 57-5-1620 of the 1976 Code is amended to read:
"Section 57-5-1620. Awards by the department of construction contracts for ten thousand dollars and more shall be made only after the work to be awarded has been advertised for at least two weeks in one or more daily newspapers in this State, but where circumstances warrant, the department may advertise for longer periods of time and in other publication media. Awards of contracts, if made, shall be made in each case to the lowest qualified bidder whose bid shall have been formally submitted in accordance with the requirements of the department. However, in cases of emergencies, as may be determined by the Director of the Department of Transportation, the department, without formalities of advertising, may employ contractors and others to perform construction or repair work or furnish materials and supplies for such construction and repair work, but all such cases of this kind shall be reported in detail and made public at the next succeeding meeting of the commission."
Name change
SECTION 1522. Section 57-5-1630 of the 1976 Code is amended to read:
"Section 57-5-1630. Unless approved in advance by the commission, no construction contract may be extended to include work not contemplated in the original award, except within the limitations imposed by the contract. Where in the judgment of the Director of the Department of Transportation it is in the public's interest and prices advantageous to the department are obtained, the department may extend contracts to include additional work in advance of the approval of the commission, if on the other hand to delay an extension until the next commission meeting an advantage to the department would be lost, but in every case, every contract extension must be subject to approval by the commission at the next succeeding meeting. The extension of a contract to include additional work in advance of the approval of the commission may not exceed fifty percent of the total amount of the original contract being so extended or the sum of one hundred fifty thousand dollars, whichever amount is less. Advertisement in the case of extensions of contracts under this section shall consist of detailed reports of the transactions made public at open meetings of the commission."
Name change
SECTION 1523. Section 57-5-1660(a)(1) of the 1976 Code is amended to read:
"(a) The Department of Transportation shall require that the contractor on every public highway construction contract, exceeding ten thousand dollars, furnish the Department of Transportation, county, or road district the following bonds, which shall become binding upon the award of the contract to such contractor:
(1) A performance and indemnity bond with a surety or sureties satisfactory to the authority awarding the contract, and in the full amount of the contract, and in no case less than ten thousand dollars, for the protection of the Department of Transportation, county, or road district."
State highway bonds revised
SECTION 1524. Article 3, Chapter 11, Title 57 of the 1976 Code is amended to read:
"Article 3
State Highway Bonds
Section 57-11-210. The terms defined herein shall have the meanings hereinafter set forth:
(1) `Fiscal year' means the fiscal year upon which the affairs of the State of South Carolina are then being conducted. As of the date of this enactment it is that which begins on July first and ends on June thirtieth of the succeeding calendar year.
(2) `Fuel oil tax' means the tax levied pursuant to Chapter 29, Title 12.
(3) `Gasoline tax' means the per gallon tax imposed upon gasoline, components thereof or substitutes therefor, pursuant to the provisions of Chapter 27 of Title 12.
(4) `Commission' means that agency of government now composed in accordance with the provisions of Articles 3 and 5 of Chapter 3, Title 57, and any other commission or agency of government hereafter exercising the powers granted to the commission pursuant to the provisions of Chapter 3, Title 57.
(5) `Highway transportation purposes' means the construction of roads and bridges now or hereafter made a part of the state highway system, or the reconstruction and improvement of highways and bridges now or hereafter made a part of the state highway system and to provide state funds to obtain matching federal highway funds.
(6) `Motor vehicle license tax' means the annual tax imposed upon a corporation, an individual, and an owner of a motor and other vehicle pursuant to the provisions of Title 56 and Title 57.
(7) `Road tax' means the road tax imposed on motor carriers pursuant to Chapter 31, Title 12.
(8) `Sources of revenue' means the gasoline tax, the fuel oil tax, the road tax, and the motor vehicle license tax.
(9) `State board' means the State Budget and Control Board of South Carolina.
(10) `State highway bonds' means all general obligation bonds of the State of South Carolina designated as state highway bonds, which are now outstanding and which may hereafter be issued pursuant to the authorizations of this article.
Section 57-11-220. State highway bonds issued for highway transportation purposes or other such purposes of the department as the General Assembly may authorize shall be issued in accordance with the provisions of this article and Chapter 47 of Title 2 of the 1976 Code. Notes may be issued in anticipation of the issuance of state highway bonds in accordance with the provisions of Chapter 17 of Title 11 of the 1976 Code.
In each odd-numbered year, beginning in 1995, the department shall review the state highway transportation needs and, upon conclusion of this review, the department shall recommend such projects as it deems advisable to consider in the ensuing year to the General Assembly and the Joint Bond Review Committee.
Section 57-11-240. The maximum annual debt service on general obligation bonds issued or outstanding as state highway bonds shall not exceed the debt service limits established in Article X, Section 13 of the South Carolina Constitution. Within such limitations, state highway bonds may be issued for state highway transportation purposes or to refund state highway bonds from time to time under the conditions prescribed by this article and as authorized under Section 2-7-105 of the 1976 Code.
Section 57-11-250. For the payment of the principal of and interest on all state highway bonds (whether now outstanding or hereafter issued), as the same shall come due, there shall be pledged the full faith, credit, and taxing power of the State of South Carolina and, in addition thereto, all of the monies derived from all sources of revenue which may be forthwith used by the State Treasurer, without further action of the commission, for the payment of the principal and interest of state highway bonds, as the same respectively mature.
Section 57-11-270. The pledge of monies derived from the sources of revenue shall not preclude the General Assembly from revising the quantum of any tax included in the sources of revenue except that, so long as any state highway bonds shall be outstanding, the sources of revenue shall be not less than the amount needed to fund the general operations budget of the department and debt service requirements for annual principal and interest payments on state highway bonds.
Section 57-11-280. The commission is authorized to request the state board to issue state highway bonds. In order to effect the issuance of bonds pursuant to this article, the state board may adopt a resolution providing for the issuance of state highway bonds, upon written request by the commission, and may transmit a certified copy thereof to the Governor and to the State Treasurer, with the request that they issue and deliver state highway bonds in accordance with the terms and conditions of such resolution. Such resolution shall set forth the:
(1) the amount, denomination, and numbering of state highway bonds to be issued;
(2) the date as of which the same shall be issued;
(3) the maturity schedule for the retirement of such state highway bonds;
(4) the redemption provisions, if any, applicable to such bonds;
(5) the maximum rate or rates of interest the bonds shall bear;
(6) the purposes for which the bonds are to be issued;
(7) the occasion on which bids shall be received for the sale of such bonds;
(8) the form of advertisement of sale;
(9) the form of the bonds of the particular issue; and
(10) such other matters as may be deemed necessary in order to effect the sale, issuance, and delivery thereof.
Such resolution shall further set forth a finding on the part of the state board that the actual receipts, for the preceding fiscal year, from the sources of revenue equaled or exceeded the maximum annual debt service requirements for all state highway bonds then outstanding and state highway bonds then proposed to be issued.
Section 57-11-290. Following receipt of a certified copy of the resolution of the state board the Governor and State Treasurer shall issue state highway bonds in accordance with the provisions of the resolution of the state board.
Section 57-11-300. State highway bonds shall be issued in such form, in such denominations, and with such provisions as to time, place, or places and medium of payment as may be determined by the state board, subject to the provisions of this article.
Section 57-11-320. State highway bonds shall be issued as fully registered bonds with both principal and interest thereof made payable only to the registered holder. Such fully registered bonds shall be subject to transfer under such conditions as the state board shall prescribe.
Section 57-11-330. State highway bonds shall bear interest, payable on such occasions as shall be prescribed by the state board. Each issue of state highway bonds shall mature in annual series or installments, which shall mature not more than twenty-five years after such date. Such installments or series may be equal or unequal in amount. State highway bonds may, in the discretion of the state board, be made subject to redemption at par and accrued interest, plus such redemption premium as it shall approve and on such occasions as it may prescribe. State highway bonds shall not be redeemable before maturity unless they contain a statement to that effect.
Section 57-11-340. All state highway bonds issued under this article, and the interest thereon, shall be exempt from all state, county, municipal, school district, and other taxes or assessments, direct or indirect, general or special, imposed by the State of South Carolina, whether imposed for the purpose of general revenue or otherwise, except inheritance, estate, or transfer taxes.
Section 57-11-360. State highway bonds shall be sold by the Governor and the State Treasurer upon sealed proposals, after publication of notice of such sale one or more times at least seven days before such sale, in a newspaper of general circulation in the State and also in a financial paper published in New York City which regularly publishes notices of sale of state or municipal bonds. The bonds shall be awarded to the bidder offering to purchase the state highways bonds at the lowest net interest cost to the State at a price of not less than ninety-nine percent of par and accrued interest to the date of delivery, but the right shall be reserved to reject all bids and to readvertise the bonds for sale and to waive technicalities in the bidding.
For the purpose of bringing about successful sales of such bonds, the state board may do all things ordinarily and customarily done in connection with the sale of state or municipal bonds. All expenses incident to the sales of such bonds shall be paid from the proceeds of the sale of such bonds.
Section 57-11-370. It shall be lawful for all executors, administrators, guardians, and other fiduciaries and all sinking fund commissions, including the State Budget and Control Board of South Carolina as manager and administrator of other state sinking funds, to invest any monies in their hands in state highway bonds.
Section 57-11-380. The proceeds of the sale of state highway bonds shall be received by the State Treasurer and applied by him to the purposes for which issued, except that the accrued interest, if any, shall be used to discharge in part the first interest to become due on such bonds, and the premium, if any, shall be used to discharge the payment of the first installment of principal to become due on such bonds, but the purchasers of such bonds shall in no wise be liable for the proper application of the proceeds to the purposes for which they are intended.
Section 57-11-390. The proceeds derived from the sale of state highway bonds shall be applied only to the purposes set forth in the resolution of the state board pursuant to which the bonds are issued."
Name change
SECTION 1525. Section 57-13-10 of the 1976 Code is amended to read:
"Section 57-13-10. The commission may cooperate and negotiate with the proper authorities of adjoining states in the construction, purchase, acquisition and maintenance of bridges constructed or to be constructed across streams which constitute boundaries between this State and such adjoining states and may expend for such purposes not exceeding one half of the total cost of such bridges and approaches thereto and bear a proportionate part of the maintenance thereof, such expenditures to be made from the funds available for the construction and maintenance of highways and bridges in the state highway system."
Name change
SECTION 1526. Section 57-13-40 of the 1976 Code is amended to read:
"Section 57-13-40. The commission may permit any person, county or municipality, or any combination thereof, to construct toll bridges and appertaining structures suitable for highway traffic on any roads of the state highway system. But before any such permit is issued an agreement satisfactory to the Department of Transportation must be executed by the person receiving such permit fixing conditions under which the bridge is to be constructed, the character and design of the structure, the rate of toll to be charged traffic using it and the terms according to which it can be acquired by the State or counties concerned."
Name change
SECTION 1527. Section 57-13-130 of the 1976 Code is amended to read:
"Section 57-13-130. The Department of Transportation is authorized to maintain and preserve the following covered bridges with the necessary connections with the state highway system:
The Old Lower Gassaway Bridge off State Road 137 in Pickens County.
The Prathers Bridge over the Tugaloo River on State Road 160 between Oconee County and the State of Georgia.
The bridge over Long Crane Creek on State Road 36 about three and one-half miles west of Troy in McCormick County.
The department may negotiate with the appropriate officials of the State of Georgia for the joint preservation and maintenance of the Prathers Bridge.
The department may limit the use of the bridges described herein to pedestrian traffic.
The provisions of Article 13, Chapter 5, Title 57 shall not apply to the maintenance of the bridges described in this section."
Name change
SECTION 1528. Section 57-15-140 of the 1976 Code is amended to read:
"Section 57-15-140. The Department of Transportation shall take over, maintain and operate the ferry across the intracoastal waterway which traverses State Highway No. 716 which extends from a point on U. S. Highway No. 17, south of Georgetown, in a southeasterly direction, to Winyah Bay, such ferry and its approaches to form a part of State Highway No. 716 in Georgetown County. The provisions of Article 13 of Chapter 5 of this Title shall not apply to the operation, repair or maintenance of any such ferry.
Contributions from private citizens or public or private agencies may be made with respect to defraying the operational or maintenance expenses of such ferry; provided, however, that any such contribution shall in no wise render legally liable or responsible any of the contributors."
Department name changed in Highway Beautification and Scenic Routes Chapter
SECTION 1529. Chapter 23, Title 57 of the 1976 Code is amended to read:
"Article 1
Beautified Sections of Highway
Section 57-23-10. Whenever the lands adjoining any hard-surfaced public road or highway in this State shall be beautified by the planting or maintaining of flowers or ornamental trees or shrubs on the lands adjoining it by any agreement of the landowners adjoining such road or by their permission, such stretch of road shall be marked at either end by the road authorities of the county or counties wherein it lies by some suitable sign showing that the stretch of road between such signs has been beautified.
Section 57-23-20. When any stretch of road shall have been so designated and marked by the road authorities of any county or counties it shall be unlawful for any person to dig, pull up, gather, remove, cut, maim, break or injure in any way, including any injury done by fires intentionally set, any wild, cultivated or ornamental plants, shrubs and trees situated on or along any such marked stretch of public road or highway or any public or privately owned land lying along such road. But the provisions of this section shall not apply where the acts hereby prohibited are done by or under the instructions of the proper authorities lawfully in charge of such public roads, highways or lands or by or with the permission of the owner of any privately owned lands.
Nothing herein contained shall affect the right of any person interested to recover damages in a suit, action or proceeding for the commission of any of the acts and deeds hereby prohibited.
Any violation of the provisions of this section shall be punishable by a fine of not more than one hundred dollars or imprisonment for not more than thirty days.
Article 3
Cherokee Foothills Scenic Highway
Section 57-23-110. State Highway No. 11 is hereby designated as the Cherokee Foothills Scenic Highway; provided, that the portion of State Highway No. 11 in Pickens and Oconee Counties shall continue to be known as the Andrew Pickens Scenic Parkway.
Section 57-23-120. In order to carry out the provisions of this article, the Department of Transportation shall provide for appropriate markers designating the highway as the Cherokee Foothills Scenic Highway, and the State Forestry Commission, the Department of Parks, Recreation and Tourism, and all other state agencies or governmental entities shall cooperate with the Department of Transportation.
Article 5
Bohicket Road Scenic Highway
Section 57-23-210. Bohicket Road on John's Island in Charleston County is hereby designated a scenic highway. The Department of Transportation, the Department of Archives and History and the Department of Parks, Recreation and Tourism shall cooperate in the installation of appropriate markers and signs to implement the designation herein provided for.
Section 57-23-220. Bohicket Road, designated a scenic highway in this article, shall be subject to the provisions of the Highway Advertising Control Act of 1971.
Article 7
Hilton Head Scenic Highway
Section 57-23-300. The I-95, U.S. Route 278 connector route beginning at the intersection of I-95 and Secondary Road 88 in Jasper County and extending easterly to S.C. Route 278 in Beaufort County is designated a scenic highway to be known as the Hilton Head Scenic Highway. The Department of Transportation, the Department of Archives and History, and the Department of Parks, Recreation and Tourism shall cooperate in the installation of appropriate markers and signs to implement the above designation.
Section 57-23-310. All off-premises outdoor advertising is prohibited on the Hilton Head Scenic Highway.
Article 8
Highway 174 Scenic Highway
Section 57-23-350. South Carolina Highway 174 south of the Dawhoo Bridge in Charleston County is declared a scenic highway. The Department of Transportation shall install appropriate markers and signs to implement this designation.
Section 57-23-360. That portion of South Carolina Highway 174 designated a scenic highway by this article is subject to the provisions of the Highway Advertising Control Act.
Article 9
Long Point Road Scenic Highway
Section 57-23-400. Long Point Road in Charleston County from Whipple Road to U.S. 17 North is designated a scenic highway to be known as the Long Point Road Scenic Highway. The Department of Transportation, the Department of Archives and History, and the Department of Parks, Recreation and Tourism shall cooperate in the installation of appropriate markers and signs to implement the above designation.
Section 57-23-410. Any new off-premises outdoor advertising is prohibited on the Long Point Road Scenic Highway after the effective date of this article.
Section 57-23-420. No trees in excess of a six-inch caliper located within the highway right-of-way of this scenic highway may be removed without the permission of the Department of Transportation upon the recommendation of the governing council of the Town of Mount Pleasant.
Article 11
Mathis Ferry Road Scenic Highway
Section 57-23-500. Mathis Ferry Road in Charleston County from Whipple Road to 7th Street in the Town of Mount Pleasant is designated a scenic highway to be known as the Mathis Ferry Road Scenic Highway. The Department of Transportation, the Department of Archives and History, and the Department of Parks, Recreation and Tourism shall cooperate in the installation of appropriate markers and signs to implement the above designation.
Section 57-23-510. Any new off-premises outdoor advertising is prohibited on the Mathis Ferry Road Scenic Highway after the effective date of this article.
Section 57-23-520. No trees in excess of a six-inch caliper located within the highway right-of-way of this scenic highway may be removed without the permission of the Department of Transportation upon the recommendation of the governing council of the Town of Mount Pleasant.
Article 13
Riverland Drive Scenic Highway
Section 57-23-600. Riverland Drive in Charleston County is designated a scenic highway to be known as the Riverland Drive Scenic Highway. The Department of Transportation, the Department of Archives and History, and the Department of Parks, Recreation and Tourism shall cooperate in the installation of appropriate markers and signs to implement the above designation.
Section 57-23-610. Any new off-premises outdoor advertising is prohibited on the Riverland Drive Scenic Highway after the effective date of this article.
Section 57-23-620. No trees in excess of a six-inch caliper located within the highway right-of-way of this scenic highway may be removed without the permission of the Department of Transportation upon the recommendation of the governing council of the County of Charleston.
Article 15
Ft. Johnson Road Scenic Highway
Section 57-23-700. Ft. Johnson Road in Charleston County is designated a scenic highway to be known as the Ft. Johnson Road Scenic Highway. The Department of Transportation, the Department of Archives and History, and the Department of Parks, Recreation and Tourism shall cooperate in the installation of appropriate markers and signs to implement the above designation.
Section 57-23-710. Any new off-premises outdoor advertising is prohibited on the Ft. Johnson Road Scenic Highway after the effective date of this article.
Section 57-23-720. No trees in excess of a six-inch caliper located within the highway right-of-way of this scenic highway may be removed without the permission of the Department of Transportation upon the recommendation of the governing council of the County of Charleston."
Department name changed in Highway Advertising Article
SECTION 1530. Article 3, Chapter 25, Title 57 of the 1976 Code is amended to read:
"Article 3
Highway Advertising Control Act
Section 57-25-110. This article may be cited as the `Highway Advertising Control Act'.
Section 57-25-120. As used in this article:
(1) `Interstate system' means that portion of the national system of interstate and defense highways located within this State officially designated now or in the future by the Department of Transportation and approved by the appropriate office of the United States Government pursuant to the provisions of Title 23, United States Code, `Highways'.
(2) `Federal-aid primary system' means that portion of connected main highways which officially are designated as the federal-aid primary highway system now or in the future by the Department of Transportation and approved by the appropriate office of the United States Government pursuant to the provisions of Title 23, United States Code, `Highways'. (3) `Sign' or `outdoor advertising sign' means an outdoor sign, display, device, figure, painting, drawing, message, plaque, poster, billboard, or other thing which is designed, intended, or used to advertise or inform, or any part of the advertising or its informative contents.
(4) An `unzoned commercial or industrial area' does not include land established as a scenic area pursuant to Section 57-25-140(D)(4) or land zoned by a subdivision of government. An unzoned commercial, business, or industrial area means the land occupied by the regularly used building, parking lot, and storage and processing area of a commercial, business, or industrial activity and land within six hundred feet of it on both sides of the highway. The unzoned land does not include:
(a) land on the opposite side of an interstate or freeway primary federal-aid highway;
(b) land predominantly used for residential purposes;
(c) land zoned by state or local law, regulation, or ordinance except land which is zoned in a manner which allows essentially unrestricted development or where regulation of size, spacing, and lighting of signs is unrestricted or less restrictive than the restrictions imposed by Section 57-25-140;
(d) land on the opposite side of a nonfreeway primary highway which is designated scenic by the commission.
(5) `Commercial or industrial activities' means those established activities generally recognized as commercial or industrial by zoning authorities within the State, except that none of the following are considered commercial or industrial activities:
(a) outdoor advertising structures;
(b) agriculture, forestry, ranching, grazing, farming, wayside produce stands, quarries, and borrow pits;
(c) activities conducted in a building principally used as a residence;
(d) hospitals, nursing homes, or long-term care facilities;
(e) transient or temporary activities;
(f) activities not visible from the main-traveled way;
(g) activities more than six hundred sixty feet from the nearest edge of the right-of-way of interstate and freeway primary federal-aid highways or more than three hundred feet from the nearest edge of the right-of-way of nonfreeway primary federal-aid highways;
(h) railroad tracks and minor sidings;
(i) sham, prohibited, or illegal activities;
(j) junkyards;
(k) schools, churches, or cemeteries;
(l) recreational facilities.
(6) `Freeway primary federal-aid highway' means a divided arterial highway for through traffic with full control of access built to the same standards as to access as an interstate highway, which is officially designated now or in the future as a part of the federal-aid primary system.
Section 57-25-130. The General Assembly finds that outdoor advertising is a legitimate form of commercial use of the private property adjacent to the public highways. The General Assembly also finds that outdoor advertising is an integral part of the business and marketing function and is an established segment of the national economy which serves to promote and protect investments in commerce and industry and is, therefore, a business which must be allowed to exist and operate where other business and commercial activities are conducted and that a reasonable use of property for outdoor advertising to the traveling public is desirable. In order, however, to prevent unreasonable distraction of operators of motor vehicles, prevent confusion with regard to traffic lights, signs, or signals, prevent interference with the effectiveness of traffic regulations, promote the prosperity, economic well-being, and general welfare of the State, promote the safety, convenience, and enjoyment of travel on and protection of the public investment in highways within this State, and preserve and enhance the natural scenic beauty or aesthetic features of the highways and adjacent areas, the General Assembly declares it to be the policy of this State that the erection and maintenance of outdoor advertising signs, displays, and devices in areas adjacent to the rights-of-way of the interstate and federal-aid primary systems within this State must be regulated in accordance with the terms of this article which provide for standards consistent with customary use in this State and finds that all outdoor advertising devices which do not conform to the requirements of this article are illegal. It is the intention of the General Assembly in this article to provide a statutory basis for regulation of outdoor advertising consistent with the public policy relating to areas adjacent to interstate and federal-aid primary systems declared by Congress in Title 23, United States Code, `Highways'.
Section 57-25-140. (A) An outdoor advertising sign must not be erected or maintained after June 30, 1975, which is visible from the main-traveled way of the interstate or federal-aid primary highways in this State and erected with the purpose of its message being read from the traveled way, except the following:
(1) official signs and notices erected and maintained by the State or local governmental authorities pursuant to laws or ordinances for the purpose of carrying out an official duty or responsibility and historical markers authorized by law and erected by the State, local governmental authorities, or nonprofit historical societies;
(2) public utility warning and informational signs, notices, and markers which customarily are erected and maintained by publicly or privately owned utilities as essential to their operations;
(3) signs and notices of service clubs and religious organizations relating to meetings of nonprofit service clubs, charitable organizations or associations, or religious services;
(4) directional signs containing directional information about public places owned and operated by federal, state, or local governments, public or privately owned natural phenomena, historical, cultural, educational, and religious sites, and areas of natural scenic beauty or naturally suited for outdoor recreation, considered to be in the public interest;
(5) signs advertising the sale or lease of property upon which they are located;
(6) on-premises signs advertising activities conducted on the property upon which they are located, including any signs advertising a business located on property under single ownership on which are located two or more businesses, regardless of leasing arrangements;
(7) signs located in areas which are zoned industrial or commercial under authority of state law;
(8) signs located in unzoned commercial or industrial areas.
(9) signs of thirty-two square feet or less advertising agricultural products of a seasonal nature, signs of a political nature, signs erected by or on the behalf of eleemosynary, civic, nonprofit, church, or charitable organizations, or signs advertising special community events which are erected temporarily for ninety days or less.
(B) Signs are not permitted in any of the above categories which imitate or resemble an official traffic sign, signal, or device, are erected or maintained upon trees, are printed or drawn upon rocks or other natural features, or are in disrepair.
(C) The size of a sign permitted under items (7) and (8) of subsection (A) must not be more than six hundred seventy-two square feet in area, sixty feet in length, or forty-eight feet in height. All dimensions include border and trim but exclude decorative bases and supports. Cutouts and extensions are in addition to this amount but may not increase the height of a sign to more than forty-eight feet and may not increase the size of a sign facing by more than one hundred fifty square feet. No more than two sign panels facing in the same direction may be erected on the same sign structure if the total area of both sign panels does not exceed the maximum. The maximum size limitation applies to each sign facing.
(D) No sign permitted under this section may obscure or otherwise interfere with the effectiveness of an official traffic sign, signal, or device nor obstruct or interfere with the driver's view of approaching, merging, or intersecting traffic. No sign except on premises and FOR SALE or LEASE signs may be located within three hundred feet of any of the following which are adjacent to the highway in areas outside of incorporated municipalities or within one hundred feet on sections inside municipalities:
(1) public parks of ten acres or more;
(2) public forests;
(3) public playgrounds of one-half acre or more;
(4) scenic areas designated by the commission or other state agency having and exercising that authority.
(E) No sign structure permitted under items (7) and (8) of subsection (A) on the interstate system or on a federal-aid primary route, constructed to controlled access standards, may be erected within five hundred feet of another sign structure on the same side of the highway. No sign may be located on the interstate system or controlled access federal-aid primary route adjacent to or within five hundred feet of an interchange or a rest area measured along the interstate or controlled access primary highways from the nearest point of the beginning or ending of pavement widening at the exit from or entrance to the main-traveled way. The distance from an interchange or a rest area set forth in this subsection does not apply to sites adjacent to highways that are within the boundaries of an incorporated municipality. No sign structure permitted under items (7) and (8) of subsection (A) on a noncontrolled access federal-aid primary route outside of an incorporated municipality may be erected within three hundred feet of another sign structure on the same side of the highway. No sign structure located adjacent to a noncontrolled access federal-aid primary route may be erected within a distance of one hundred feet of another sign structure inside an incorporated municipality on the same side of the highway. This subsection does not apply to advertising displays which are separated by a building or other obstruction so that only one display located within the minimum spacing distance is visible from any point on the highway at any one time.
(F) No sign permitted under items (7) and (8) of subsection (A) may contain, include, or be illuminated by a flashing, intermittent, or moving light, except those giving public service information such as time, date, temperature, weather, or other similar information. No sign permitted under this section may be erected or maintained which is not shielded effectively so as to prevent beams or rays of light from being directed at a portion of the main-traveled way of an interstate or federal-aid primary route and which is of an intensity or brilliance so as to cause glare or to impair the vision of the driver of a motor vehicle or which otherwise may interfere with a driver's operation of a motor vehicle. No sign may be illuminated so that it interferes with the effectiveness of or obscures an official traffic sign, device, or signal.
(G) The standards contained in this section pertaining to size, shape, description, lighting, and spacing of outdoor advertising signs permitted in zoned and unzoned commercial and industrial areas do not apply to signs lawfully in place on this article's effective date. Signs lawfully in place on November 3, 1971, or erected within six months after that date under a lease dated and recorded before that date are exempted from the standards requirement.
(H) Whenever a bona fide county or local zoning authority has made a determination of customary use, which includes a regulation of size, lighting, and spacing of outdoor advertising signs, in zoned industrial or commercial areas, the determination prevails over the size, lighting, and spacing otherwise provided for the signs in subsections (C) and (E) if all of the following exist:
(1) The standards imposed on size, lighting, and spacing are at least as restrictive as the standards set forth in subsections (C), (D), (E), and (F).
(2) The zoning plan provides for effective enforcement by the zoning authority of the imposed restrictions.
(3) The zoning plan and amendments are submitted to and approved by the Department of Transportation before they prevail over the standards set forth in this section.
Zoning which controls contiguous tracts which comprise less than twenty percent of the land within a political subdivision or land which is zoned primarily to permit outdoor advertising signs is not considered zoning for the purposes of this section.
(I)(1) No person may cut, trim, or otherwise cause to be removed vegetation from within the limits of highway rights-of-way unless permitted to do so by the department. Permits to remove vegetation may be granted only for sign locations which have been permitted at least two years and then only at the sole discretion of the department.
(2) If vegetation is removed from within a highway right-of-way without a permit by the sign owner or his agent and the removal has the effect of enhancing the visibility of the outdoor advertising sign, the sign is illegal and must be removed at the responsible party's expense. Upon a violation of this subsection the responsible party is not eligible for a sign permit:
(a) for one year: first violation;
(b) for five years: second violation;
(c) permanently: third and subsequent violations.
(3) The department must be reimbursed for cleaning or replanting at the site of the illegal cutting by the responsible party. Until the expenses are reimbursed, the responsible party must not be issued a sign permit.
(J) Signs permitted under items (1), (2), (3), and (4) of subsection (A) must comply with the regulations promulgated by the commission in accordance with uniform national standards.
Section 57-25-150. (A) The commission shall issue permits for the erection and maintenance of outdoor advertising signs coming within the exceptions contained in items (1), (2), and (3) of subsection (A) of Section 57-25-140, consistent with the safety and welfare of the traveling public necessary to carry out the policy of the State declared in this article and consistent with the national standards promulgated by the Secretary of Transportation or other appropriate federal official pursuant to Title 23, United States Code.
The commission also shall promulgate regulations governing the issuance of the permits and standards for size, spacing, and lighting of the signs and their messages.
(B) The Department of Transportation shall issue permits for all signs on location on November 3, 1971, except those signs erected pursuant to items (1), (2), (3), (5), and (6) of subsection (A) of Section 57-25-140. It also shall issue permits for the erection and maintenance of additional outdoor advertising signs coming within the exceptions contained within items (4), (7), and (8) of subsection (A) of Section 57-25-140. Sign owners must be assessed the following fees:
(1) the appropriate annual fee plus an initial nonrefundable permit application fee of one hundred dollars, except that the nonrefundable permit application fee shall be waived for South Carolina farmers advertising agricultural products produced on land that they farm which are for sale to the public and if the signs do not exceed thirty-two square feet;
(2) an annual fee of twenty dollars if the advertising area does not exceed three hundred fifty square feet; and
(3) an annual fee of thirty dollars if the advertising area exceeds three hundred fifty square feet.
The permit fees must be allocated first for administrative costs incurred by the department in maintaining the outdoor advertising program.
The permit number must be displayed prominently on the sign.
(C) Permits are for the calendar year, must be assigned a permanent number, and must be renewed annually upon payment of the fee for the new year without the filing of a new application. Fees must not be prorated for a portion of the year. Only one permit is required for a double-faced, back-to-back, or V-type sign. Advertising copy may be changed without the payment of an additional fee. No permit is required before January 1, 1973. Failure to pay a renewal fee within ninety days of the date of the first bill for the fee cancels the permit and makes the sign illegal.
(D) The commission shall promulgate regulations governing the issuance of permits which must include mandatory maintenance to ensure that all signs are always in a good state of repair. Signs not in a good state of repair are illegal.
(E) The cost of permits or their renewals required under the provisions of this article are in addition to ad valorem taxes.
(F) No permit application may be approved without written permission of the owner or other person in lawful possession of the site designated as the location of the sign in the application.
(G) Permits for the following signs are void:
(1) conforming sign which is removed voluntarily for more than thirty days;
(2) conforming sign which is removed, dismantled, or destroyed by an act of God or vandalism for more than sixty days;
(3) nonconforming sign which is removed voluntarily or removed, dismantled, or destroyed by an act of God or vandalism.
Section 57-25-155. Notwithstanding any other provision of law, the Department of Transportation must issue permits for existing signs and outdoor advertising signs on highways in the interstate system or federal-aid primary system in this State that are nonconforming only because a permit was not obtained prior to erection of the sign. The department may not require removal of conforming signs and outdoor advertising signs as a prerequisite to issuing a permit for such signs that would otherwise qualify for a permit.
Section 57-25-160. A person who erects or maintains an advertising device in violation of Section 57-25-140 is guilty of a misdemeanor and, upon conviction, must be fined not more than two hundred dollars or imprisoned for not more than thirty days for each violation.
In addition, a person who violates the provisions of this chapter must be assessed by the department a civil penalty of one hundred dollars a day until the violation ends. A civil penalty must be paid to the department and allocated to the administrative costs of the outdoor advertising program. All monies in excess of the administrative costs must be used in the acquisition of nonconforming signs and may be carried over from year to year. No permit may be issued to a person who is in violation of the provisions of this chapter or who has not paid an assessed civil penalty.
Section 57-25-170. The commission may provide within the right-of-way for areas at appropriate distances from interchanges on the interstate system and controlled access roads on the federal-aid primary system on which signs, displays, and devices giving specific information in the interest of the traveling public may be erected and maintained under standards and regulations authorized to be adopted and promulgated by the commission. The standards and regulations may provide for cooperative agreements between the Department of Transportation and private interests for the use and display of names for FOOD, LODGING, and GAS information signs on the highway right-of-way.
Section 57-25-180. (A) An outdoor advertising sign which violates the provisions of this article is illegal and the Department of Transportation shall give thirty days' notice by certified or registered mail to the owner of the advertising sign and to the owner of the property on which the sign is located for its removal. However, a sign lawfully in existence along the interstate system or the federal-aid primary system on November 3, 1971, or which was lawfully erected after that date, which is not in conformity with the provisions contained in this article, is not required to be removed until just compensation has been paid for it. Except as provided in Section 57-25-160, no sign otherwise required to be removed under this article for which just compensation is authorized to be paid by the department is required to be removed if the federal share of at least seventy-five percent of the just compensation to be paid upon its removal is not available for the payment. Nothing in this section prevents the removal of nonconforming signs for which no federal share is payable in those instances where no compensation has to be paid.
(B) Employees or agents of the department may go upon the property upon which an illegal sign is located after expiration of the thirty-day period for the purpose of its removal. The period of the notice must be computed from the date of mailing. No notice, however, is required to be given to the owner of an advertising sign for which a permit has not been obtained. The moving of an illegal sign from one location to another without a permit having been obtained for the illegal sign does not require the department to provide additional notice to the sign owner before removing the sign, even if the sign is moved from the property of one owner to the property of another.
(C) When the department removes an illegal sign, it must be reimbursed the removal expenses by the sign owner. The sign must be maintained in the possession of the department for no more than thirty days during which the sign may be claimed by the owner upon payment of the expenses. If the sign is not claimed during the thirty days, it is declared abandoned, becomes the property of the department, and may be disposed of through sale or in any other manner which the department considers appropriate. Even if the owner does not recover the sign, he remains liable to the department for the expenses incurred in removing and storing the sign. Until the expenses are reimbursed, the sign owner must not be issued a permit for an outdoor advertising sign from the department.
(D) Review of the department's determination that a sign is illegal is through an administrative hearing pursuant to the Administrative Procedures Act. Written request for the review must be received by the department within the thirty-day period.
Section 57-25-185. The Department of Transportation shall promulgate regulations consistent with Section 131(o), Title 23, United States Code, or such other provisions of Title 23 as may be appropriate, to allow signs, displays, and devices on federally-aided primary routes outside of nonurban areas which (1) provide directional information about goods and services in the interest of the traveling public and (2) are such that removal would work an economic hardship in such areas. Pursuant to Section 131(o), Title 23, United States Code, the department shall submit these regulations to the United States Secretary of Transportation for approval.
Section 57-25-190. (A) The Department of Transportation may acquire by purchase, gift, or condemnation and shall pay just compensation upon the removal of the following outdoor advertising signs:
(1) those lawfully in existence on November 3, 1971;
(2) those lawfully erected after November 2, 1971.
(B) Compensation may be paid only for the taking from the owner of:
(1) a sign of all right, title, leasehold, and interest in it;
(2) the real property on which the sign is located of the right to erect and maintain a sign on it.
(C) No sign may be removed until the owner of the property on which it is located has been compensated fully for a loss which may be suffered by him as a result of the removal of the sign through the termination of a lease or other financial arrangement with the owner of the sign. The compensation must include damage to the landowner's property occasioned by the removal of the sign. The Department of Transportation is limited to an expenditure of five million dollars for the state's part of just compensation.
(D) Tourist oriented directional signs must be the last to be removed under the terms of this article.
Section 57-25-195. In order to comply with Section 131, Title 23, United States Code and regulations promulgated under that section and to prevent interruption of the state's federally-aided highway funding, the Department of Transportation shall confer with the Federal Highway Administration as to how best to structure a nonconforming sign removal program.
The department shall submit to the Federal Highway Administration in a timely fashion its process, program, and timetable for removal of nonconforming signs under Section 131, Title 23, United States Code and regulations promulgated under that section. In developing and implementing this removal program the department shall consult with interested parties and affected entities including, but not limited to, other state and local agencies, sign owners, environmental groups, and the business community.
Section 57-25-200. (A) Within the requirements of this article the commission may enter into agreements with other governmental authorities relating to the control of outdoor advertising in areas adjacent to the interstate and primary highway systems, including the establishment of information centers and safety rest areas and take action in the name of the State to comply with the terms of the agreements.
(B) If an agreement is not achieved, the Attorney General of this State promptly shall initiate proceedings under the provisions of Section 131(1) of Title 23 of the United States Code with respect to hearings, stay of penalties, and judicial review in order to resolve the disagreement by judicial determination. He also shall initiate the proceedings if there is a determination to withhold funds from this State for its alleged failure to comply with any provision of Section 131 in order to obtain a judicial determination of whether this article provides effective control of outdoor advertising in conformity with the section and, if not, the extent of modifications necessary to bring it into compliance.
Section 57-25-210. The commission is not required to expend funds for the removal of outdoor advertising under this article until federal funds are made available to the State for the purpose of carrying out the provisions of this article and the commission has entered into an agreement with the Secretary of Transportation as authorized by Section 57-25-200 and as provided by the Highway Beautification Act of 1965.
Section 57-25-220. Nothing in this article abrogates or affects the provisions of a lawful ordinance, regulation, or resolution which is more restrictive than the provisions of this article."
Name change
SECTION 1531. Section 57-25-430(d)(4) of the 1976 Code is amended to read:
"(4) Scenic areas designated by the Department of Transportation or other state agency having and exercising such authority."
Name change
SECTION 1532. Section 57-25-440 of the 1976 Code is amended to read:
"Section 57-25-440. The Department of Transportation is hereby authorized to issue permits for the erection and maintenance of outdoor advertising signs coming within the exceptions contained in subsections (a)(1), (a)(2), (a)(3) and (a)(4) of Section 57-25-430, consistent with the safety and welfare of the traveling public, and as may be necessary to carry out the policy declared in this article."
Name change
SECTION 1533. Section 57-25-460(1) of the 1976 Code is amended to read:
"(1) Any advertising device which violates the provisions of this article is hereby declared to be a public nuisance and the department shall give sixty days notice, by certified or registered mail, to the owner of the advertising device and to the owner of the property on which such device is located to remove the device. Provided, however, that any sign, display or device lawfully in existence along the highway on September 1, 1965 which is not in conformity with the provisions contained herein shall not be required to be removed until July 1, 1971, except that the Department of Transportation may jointly agree with the owner of any sign or the property owner for the earlier removal of such sign. Any other sign, display or device lawfully erected subsequent to September 1, 1965 and prior to May 6, 1969, which does not conform with the requirements of this article may not be required to be removed until the end of the fifth year after the erection thereof, or after it becomes nonconforming, except that the Department of Transportation may jointly agree with the owner of any sign, or the property owner, for the earlier removal of such sign."
Name change
SECTION 1534. Section 57-25-480 of the 1976 Code is amended to read:
"Section 57-25-480. The Department of Transportation may provide within the right-of-way for areas at appropriate distances on which signs, displays and devices giving specific information in the interest of the traveling public may be erected and maintained under standards and regulations hereby authorized to be adopted by the department. Such standards and regulations may provide for cooperative agreements between the Department of Transportation and private interests for the use and display of brand names for FOOD, LODGING and GAS information signs on the highway right-of-way."
Name change
SECTION 1535. Section 57-25-490 of the 1976 Code is amended to read:
"Section 57-25-490. In order to carry out the provisions of this article and to make the highway a scenic highway, the State Forestry Commission, the Department of Parks, Recreation and Tourism, and all other state agencies or governmental entities shall cooperate with the Department of Transportation."
Name change
SECTION 1536. Section 57-25-640(d)(4) of the 1976 Code is amended to read:
"(4) Scenic areas designated by the Department of Transportation or other state agency having and exercising such authority."
Name change
SECTION 1537. Section 57-25-650 of the 1976 Code is amended to read:
"Section 57-25-650. The Department of Transportation is hereby authorized to issue permits for the erection and maintenance of outdoor advertising signs coming within the exception contained in subsections (a) (1), (a) (2), (a) (3) and (a) (4) of Section 57-25-640, consistent with the safety and welfare of the traveling public, and as may be necessary to carry out the policy declared in this article."
Name change
SECTION 1538. Section 57-25-670(1) of the 1976 Code is amended to read:
"(1) Any advertising device which violates the provisions of this article is hereby declared to be a public nuisance and the department shall give sixty days' notice, by certified or registered mail, to the owner of the advertising device and to the owner of the property on which such device is located to remove the device. Provided, however, that any sign, display, or device lawfully in existence along the highway on September 1, 1965, which is not in conformity with the provisions contained herein, shall not be required to be removed until July 1, 1971, except that the Department of Transportation may jointly agree with the owner of any sign or the property owner for the earlier removal of such sign. Any other sign, display, or device lawfully erected subsequent to September 1, 1965, and prior to June 11, 1969, which does not conform with the requirements of this article may not be required to be removed until the end of the fifth year after the erection thereof, or after it becomes nonconforming, except that the Department of Transportation may jointly agree with the owner of any sign, or the property owner, for the earlier removal of such sign."
Name change
SECTION 1539. Section 57-25-690 of the 1976 Code is amended to read:
"Section 57-25-690. The Department of Transportation may provide within the right-of-way for areas at appropriate distances on which signs, displays and devices giving specific information in the interest of the traveling public may be erected and maintained under standards and regulations hereby authorized to be adopted by the Department of Transportation. Such standards and regulations may provide for cooperative agreements between the Department of Transportation and private interests for the use and display of brand names for FOOD, LODGING and GAS information signs on the highway right-of-way."
Name change
SECTION 1540. Section 57-25-700 of the 1976 Code is amended to read:
"Section 57-25-700. In order to carry out the provisions of this article and to make the highway a scenic highway, the Department of Transportation shall provide for appropriate markers designating the highway as the John C. Calhoun Memorial Highway, and the State Forestry Commission, the Department of Parks, Recreation and Tourism and all other state agencies or governmental entities shall cooperate with the Department of Transportation."
Name change
SECTION 1541. Items (e), (f), and (g) of Section 57-27-20 of the 1976 Code are amended to read:
"(e) `Interstate system' means that portion of the National System of Interstate and Defense Highways located within this State, as officially designated, or as may hereafter be so designated, by the Department of Transportation, and approved by the Secretary of Commerce or other appropriate federal official, pursuant to the provisions of Title 23 of the United States Code.
(f) `Federal aid primary system' means that portion of connected main highways, as officially designated, or as may hereafter be so designated, by the Department of Transportation, and approved by the Secretary of Commerce or other appropriate federal official, pursuant to the provisions of Title 23 of the United States Code.
(g) `Department' means the Department of Transportation."
Name change
SECTION 1542. Section 57-27-90 of the 1976 Code is amended to read:
"Section 57-27-90. The Department of Transportation is hereby authorized to enter into agreements with the United States Secretary of Commerce as provided by Title 23 of the United States Code, relating to the control of junkyards in areas adjacent to the interstate and federal aid primary systems, and to take action in the name of the State to comply with the terms of such agreement."
Department of Highway and Public Transportation Commission abolished
SECTION 1543. The South Carolina Department of Highways and Public Transportation Commission that is in existence on the effective date of this act is abolished upon the election of Transportation Commissioners for the Department of Transportation as provided for in Article 3, Chapter 1 of this Title.
Authority of Commission's department personnel to promote or transfer prohibited
SECTION 1544. On the date which the free conference report on H. 3546 is adopted by the Senate and the House of Representatives, the Commission of the South Carolina Department of Highways and Public Transportation and any person, committee, or other group of persons within the department who have or would otherwise have the authority to promote or transfer personnel are expressly prohibited from transferring or promoting any person who is part of an office or division which is being relocated or transferred to another department or agency.
Authority to transfer personnel in divisions or offices restructured prohibited
SECTION 1545. On the date which the free conference report on H. 3546 is adopted by the Senate and the House of Representatives, the commission and any person or group of persons within the department who would otherwise have the authority to transfer personnel are prohibited from transferring any person into or out of a division or office which is part of an office or division or other group which is being relocated or transferred to another department or agency.
Name change
SECTION 1546. Section 57-5-1335 of the 1976 Code is amended to read:
"Section 57-5-1335. The Department of Transportation, before constructing a bridge or replacing an existing bridge which qualifies as a turnpike facility as defined in Section 57-5-1320, shall conduct the feasibility study required by Section 57-5-1330 and shall forward copies of the study to the Chairman of the Transportation and Finance Committees of the Senate and the Education and Public Works and Ways and Means Committees of the House of Representatives within fifteen days of the completion of the study."
Name changed
SECTION 1547. Section 58-1-30 of the 1976 Code is amended to read:
"Section 58-1-30. When any public utility in this State appeals from any order or decision fixing a rate for its service lower than that obtaining at the time of such order or decision, before any such appeal shall operate as a supersedeas such utility shall give bond to the South Carolina Department of Revenue and Taxation to insure compliance on its part with the rates as fixed in the order from which the appeal is taken, in the event that the order appealed from is affirmed. The amount of the bond shall be fixed by the court to which the appeal is taken and shall be sufficient to cover the amount that may become due to customers by way of refund during the time that the operation of the rate-fixing order is stayed pending the final determination of its validity."
Name changed
SECTION 1548. The first paragraph of Section 58-1-40 of the 1976 Code is amended to read:
"All railroad companies, express companies, street railway companies, navigation companies, waterworks companies, power companies, light companies, telephone companies, telegraph companies and parlor, dining and sleeping car companies exercising the right and privilege of doing business or operating under the authority of any grant of authority or permission of this State, whether by direct enactment of the General Assembly or otherwise, and also foreign nonresident corporations engaged in like business and exercising similar rights and privileges, shall, in addition to the information required by Section 12-19-20, also state in such report to the Department of Revenue and Taxation:"
Merit selection panel deleted
SECTION 1549. Section 58-3-20 of the 1976 Code is amended to read:
"Section 58-3-20. The Public Service Commission shall be composed of seven members to be elected by the General Assembly in the manner prescribed by this chapter for terms of four years and until their successors are elected and qualify.
The General Assembly shall provide for the election of the seven member commission and elect members thereto based upon the congressional districts established by the General Assembly pursuant to the official United States Census of 1980. If the number of congressional districts is less than seven, additional members shall be elected at large to provide for a seven member commission."
Merit selection panel provisions deleted
SECTION 1550. Section 58-3-24 of the 1976 Code is amended to read:
"Section 58-3-24. After January 1, 1981, no member of the General Assembly shall be elected to the Public Service Commission while that person is serving in the General Assembly nor shall that person be elected to the Public Service Commission for a period of four years after he ceases to be a member of the General Assembly."
Election of Public Service Commissioners
SECTION 1551. Chapter 3 of Title 58 of the 1976 Code is amended by adding:
"Section 58-3-26. Whenever an election is to be held by the General Assembly in joint session to elect a person to serve on the Public Service Commission, a joint committee, composed of ten members, three of whom shall be members of the House of Representatives, three of whom shall be members of the Senate, two of whom shall be appointed by the President Pro Tempore of the Senate from the general public at-large, and two of whom appointed by the Speaker of the House of Representatives from the general public at-large shall be appointed to consider the qualifications of the candidates. Each body shall determine how its respective legislative members shall be selected. Provided, however, that in making appointments to the joint committee, race, gender, and other demographic factors should be considered to assure nondiscrimination, inclusion, and representation to the greatest extent possible of all segments of the population of the State. The joint committee shall meet as soon after its appointment as may be practicable and shall elect one of its members as chairman, one as secretary, and such other officers as it may deem desirable. The joint committee shall conduct its screening pursuant to the provisions of Section 2-9-10 et seq.
The members of the general public appointed by the Speaker and the President Pro Tempore must be representative of all citizens of this State, must not be members of the General Assembly, and must not be affiliated in any way with an entity regulated by the commission.
In screening such persons for election to the Public Service Commission the joint committee shall seek to establish a commission which shall be broadly representative of the people of the State, men and women of ability and dedication with compassion and common sense. In screening persons for election to the Public Service Commission, the joint committee shall consider the knowledge and experience of the potential appointees in such varied fields as business, government, accounting, law, engineering, statistics, consumer affairs and finance. In making its findings the joint committee shall seek to find the best qualified people giving due consideration to their ability and integrity."
Name changed
SECTION 1552. Section 58-3-100 of the 1976 Code is amended to read:
"Section 58-3-100. The expenses of the Transportation Division of the Public Service Commission, with the exception of the expenses incurred in its railway jurisdiction, must be borne by the revenues from license fees derived pursuant to Sections 58-23-530 through 58-23-630, registration fees derived pursuant to Section 58-23-640, and the portion of the fuel stamp fees allocated to the Public Service Commission by the Department of Revenue and Taxation. The expenses of the railway section of the Public Service Commission must be borne by the railroad companies subject to the Public Service Commission's jurisdiction according to their gross income from operations in this State.
Except as specifically provided above, in Sections 58-5-940 and 58-27-50, all other expenses of the Public Service Commission must be borne by the public utilities as defined in Section 58-5-10, telephone utilities as defined in Section 58-9-10, radio common carrier as defined in Section 58-11-10, and electric utilities as defined in Section 58-27-10 under the commission's jurisdiction. On or before the first day of October in each year, the Department of Revenue and Taxation shall assess each utility company and railway company its proportion of the expenses in proportion to its gross income from operation in this State in the year ending on the thirtieth day of June preceding that on which the assessment is made. The assessments must be charged against the companies by the Department of Revenue and Taxation and collected by the Department of Revenue and Taxation in the manner provided by law for the collection of taxes from the companies including the enforcement and collection provisions of Article 1, Chapter 54 of Title 12 and paid, less the Department of Revenue and Taxation's actual incremental increase in the cost of administration into the State Treasury as other taxes collected by the Department of Revenue and Taxation for the State.
The Public Service Commission shall certify to the South Carolina Department of Revenue and Taxation annually on or before August first the amounts to be assessed."
Reference revised
SECTION 1553. Section 58-12-130(A) of the 1976 Code is amended to read:
"(A) The Department of Transportation may issue a general continuing permit to each cable television company operating in this State. Upon the reporting by the company of a proposed extension of its cable subject to this chapter and approval of the extension by the department, the permit applies to each extension. This authorization eliminates the necessity of the issuance of a permit for each extension."
Reference revised
SECTION 1554. Section 58-15-1625 of the 1976 Code is amended to read:
"Section 58-15-1625. Notwithstanding any other provision of law, the Department of Transportation may order legally closed and abolished as a public way, within the limits of a railroad right-of-way, a grade crossing then in existence at the time the department assumes jurisdiction of the matter, upon a finding that the enhancement of public safety resulting from such closing outweighs any inconvenience caused by increased circuitry of highway routes. This order by the department may be issued either in connection with, or independent of, an order relating to automatic train-activated warning signals. The authority of the department legally to close and abolish grade crossings is in addition to authority granted by law to other state agencies or to local units of government to close and abolish grade crossings. Upon the issuance of the order by the department, the railroad or railroads involved shall physically remove the crossing from the tracks, and the governmental unit maintaining the highway shall remove or barricade the approaches to the crossing."
Reference revised
SECTION 1555. Section 58-15-1650 of the 1976 Code is amended to read:
"Section 58-15-1650. The railroad company involved may select the material to be used in the construction of the grade separation structure, provided such material shall not be less durable than creosoted timber of a quality at least equal to that required by the standard specifications of the Department of Transportation for its own bridge work."
Reference revised
SECTION 1556. Section 58-15-1680 of the 1976 Code is amended to read:
"Section 58-15-1680. Underpasses or overhead bridges constructed in accordance with this article shall meet the specifications of the Department of Transportation."
Reference revised
SECTION 1557. Section 58-15-1910 of the 1976 Code is amended to read:
"Section 58-15-1910. The Department of Transportation shall cooperate with any railroad company operating lines in the State in effecting necessary reconstruction, changes or alterations in grade separation structures on state highways where the tracks of such company cross such highways."
Reference revised
SECTION 1558. Section 58-15-1920 of the 1976 Code is amended to read:
"Section 58-15-1920. The necessity for any such reconstruction, changes or alterations shall be determined by the Department of Transportation and made in accordance with plans adopted by the department. But any railroad company concerned shall be given at least ten days' notice before any such work is initiated by the department and shall be permitted by the department to offer suggestions and counsel as to the proposed reconstruction, changes or alteration."
Reference revised
SECTION 1559. Section 58-15-1930 of the 1976 Code is amended to read:
"Section 58-15-1930. The cost of effecting any reconstruction, changes or alterations as contemplated in Sections 58-15-1910 and 58-15-1920, including the grade separation structure and its approaches for a distance of five hundred feet, if so much be necessary, measured from the center line in each direction along the highway, but not including the pavement or wearing surface for either the structure or its approaches, shall be borne sixty per cent by the Department of Transportation and forty per cent by the railroad company concerned and, in case of failure on the part of any such company to furnish its pro rata share of the necessary funds for paying the cost of any such reconstruction, changes or alterations, the Department of Transportation may, after thirty days' notice, proceed with the work and collect from the railroad company concerned a proper pro rata share of the cost on the basis established by Sections 58-15-1910 to 58-15-1950."
Reference revised
SECTION 1560. Section 58-15-1940 of the 1976 Code is amended to read:
"Section 58-15-1940. This article shall apply to all cases where grade separation structures on state highways across railroads are, in the judgment of the Department of Transportation, for any reason inadequate for the traffic on the highway, but shall not apply to grade crossings. This article shall not be construed as relieving any railway company from any obligation or duty now borne by or resting upon such company in connection with any grade separation structure."
References revised
SECTION 1561. Section 58-15-1950 of the 1976 Code is amended to read:
"Section 58-15-1950. Any railroad company affected by any decision or action of the Department of Transportation made or initiated pursuant to the provisions of this article may appeal to the Supreme Court in its original jurisdiction for a review of the department's findings as to either the necessity for the proposed reconstruction, changes or alterations or determinations relating to divisions of costs. The appeal, however, shall not operate as a stay to prevent the department from proceeding with the work after notice, as provided in Section 58-15-1930, unless so ordered specifically by the court or some member thereof, after prima facie showing that the appellant's property, or the use thereof, after the completion of the proposed reconstruction, changes or alterations would be definitely impaired and rendered less suitable for its intended purposes. But in case of any stay order by the court, or some member thereof, on the appellant's showing and the subsequent finding by the court that such injury would result from the proposed reconstruction, changes or alterations to the appellant's property, or the use thereof, the appellant shall be held liable for any damages or losses sustained by the Department of Transportation incident to, occasioned or brought about by the delay pending the appeal."
References revised
SECTION 1562. Section 58-15-2120 of the 1976 Code is amended to read:
"Section 58-15-2120. In case of grade crossings of state highways over such railroads, the Department of Transportation, after due notice to the railroad, corporation or operator, and hearing the railroad, or operator, involved, if application is made for such a hearing within ten days after receipt of the notice, and after finding that the public safety, convenience or necessity require it, shall have the power to specify the character of the grade crossings, and the operator of the railroad shall, at its own expense, construct and maintain the crossings to meet the specifications of the Department of Transportation; provided, however, that the power to specify the character of grade crossings granted in this section shall not extend beyond five feet on either side of the center line of the track; provided, further, that the Department of Transportation shall have the power, in matters relating to such grade crossings, now pending or hereafter arising, to enter into such agreements with operators of railroads pertaining to the construction thereof as in its judgment may be to the best interest of the State, and to agree to pave the area across the tracks after the area is otherwise prepared for paving by the operator of the railroad. The Department of Transportation, with the advice and consent of the Attorney General, may waive any and all claims for penalties now existing, upon entry into such agreements."
Reference revised
SECTION 1563. Section 58-15-2130 of the 1976 Code is amended to read:
"Section 58-15-2130. Any person or corporation failing to comply with the provisions of this article, after a hearing, if one is applied for as set out in Section 58-15-2120, and after having been notified in writing of the decision of the proper authorities that the crossing is required by public safety, convenience and necessity, and after the lapse of thirty days from the date of such notice, shall, upon conviction, be fined ten dollars per day for each day's delay in furnishing any crossing as required hereby. The Department of Transportation shall make a complaint to any court of competent jurisdiction within the county where the offense is committed, and shall furnish evidence before such court whenever a violation of this article may occur."
References revised
SECTION 1564. Section 58-17-1450 of the 1976 Code is amended to read:
"Section 58-17-1450. All railroad crossings on public highways must be inspected for conditions which unsafely obstruct a motorist's view of approaching trains, for the presence of crossbucks prescribed by Section 58-17-1390, and for the presence of stop signs authorized by law to be placed at railroad crossings. The Department of Transportation hereinafter referred to as the department, is responsible for inspecting railroad crossings on state maintained highways, the governing body of each county is responsible for inspecting railroad crossings on county maintained roads, and the governing body of each municipality is responsible for inspecting railroad crossings on road and street rights-of-way maintained by municipalities. The department shall inform counties and municipalities of the railroad crossings they are responsible for inspecting. By January 1, 1989, the governing body of each county and municipality must notify the department of the office and public official to whom the governing body has assigned responsibility for performing the inspections. If the person inspecting a railroad crossing finds that the required crossbucks are not in place, properly in place or maintained, or finds that a motorist's view of approaching trains is unsafely obstructed by vegetation, growth, or objects not permanently affixed to realty which are within the right-of-way of the railway, the person inspecting the crossing must immediately notify the Deputy Director of Engineering within the Department of Transportation of the hazard. The notice must identify the crossing and describe the hazard. The inspector in the notice shall also inform the State Highway Engineer whether or not there is a stop sign at the crossing and, if not, whether or not in his opinion one should be added. Upon receipt of notice from the person inspecting the crossing, the department must give written notice of the hazard immediately by certified mail to any officer or registered agent of the railroad within the State. Notice from the department shall direct the railroad to cut or remove the vegetation, growth, and objects not permanently affixed to realty that are obstructing a motorist's view or to erect, maintain, or properly situate crossbucks.
The department must also notify the governing body of any county or municipality which maintains the highways or roadways at the crossing that the inspector stated in his opinion that a stop sign should be added at the crossing.
Removal and elimination of obstructions must be made by the responsible railroad within sixty days of receipt of notification from the department. Measures to assure that crossbucks are properly in place and maintained must be taken by the responsible railroad within thirty days of receipt of notification from the department; however, if crossbucks are not present or have been removed, then the railroad has ten days from the notification to erect new crossbucks. Failure of the railroad company to remove or eliminate the obstruction within the railroad's right-of-way and to erect or properly place and maintain crossbucks within the specified time period subjects the railroad company to a civil penalty of not less than one hundred dollars nor more than five hundred dollars. The railroad company is subject to an additional civil penalty of one hundred dollars a day for each day obstructions remain after the specified period and for each day crossbucks are not erected or properly placed and maintained after the specified period.
The person initially inspecting the railroad crossing is responsible for inspecting the crossing at appropriate intervals after notice to the railroad of the hazard to determine if obstructions have been eliminated and crossbucks properly placed and serviced within the period allowed before civil penalties may be assessed.
If the person inspecting the railroad crossing finds that a motorist's view of approaching trains is obstructed by vegetation, growth, or objects not permanently affixed to realty that lie outside the right-of-way of the railroad but within right-of-way of highways and roads maintained by the State, county, or municipality, the person inspecting the railroad crossing must immediately give written notice of the hazard to the appropriate department of the State, county, or municipality, upon whose right-of-way the obstruction exists. If the obstruction is on the right-of-way maintained by a county or municipality, the person inspecting the crossing must also give immediate written notice of the hazard to the Deputy Director of Engineering within the Department of Transportation.
The department, counties, and municipalities have sixty days from issuance of the written notice by the person inspecting the crossing to eliminate the obstructions within their respective rights-of-way.
The person initially inspecting the railroad crossing is responsible for inspecting the crossing after notice of the hazard has been given and reporting to the department the date upon which obstructions are eliminated. If counties or municipalities do not eliminate the obstructions within sixty days of receipt of notification, the department must remove or eliminate the obstructions. Counties and municipalities must reimburse the Department of Transportation for the department's cost in eliminating the obstructions.
If the person inspecting the railroad crossing finds that motorists' view of approaching trains is obstructed by vegetation, growth, or objects not permanently affixed to realty that lie on private property outside the right-of-way of the railroad and outside the highway or road right-of-way of the State, county, or municipality, he must immediately give written notice of the hazard to the owner of the property and to the appropriate agency of the State, county, or municipality which maintains that highway or roadway. The owner of the property has sixty days after receipt of the notice to eliminate the obstructions and the inspector shall reinspect the crossing after this sixty-day period has expired to determine if the obstructions have been eliminated.
By January first of each year, counties and municipalities must report all railroad crossings that were inspected during the preceding year and at which no obstructions were found to the department. The department must make an annual report of inspections conducted during the preceding year. The annual report must be provided to the Senate Transportation Committee and the Education and Public Works Committee of the House of Representatives."
Reference revised
SECTION 1565. Section 58-23-1220 of the 1976 Code is amended to read:
"Section 58-23-1220. Before the issuance of any such license card or plate, the owner of the taxi shall procure and file with the governing body of the county a liability insurance policy, together with a receipt showing the payment of the premium therefor, issued by a good and responsible insurance company to be approved by the governing body of the county, the company being one authorized to do business in this State and in possession of a certificate issued by the Department of Insurance. The amount of such liability insurance for each car shall be as follows: An amount not less than five thousand dollars for personal injury and an amount not less than one thousand dollars for property damage in any one accident. Such policy of insurance may be in the form of a separate policy for each taxi or may be in the form of a fleet policy covering all taxis operated by such owner if such policy shall provide for the same amount of liability for each taxi operated. A stipulation shall be made providing that no such policy above required may be canceled until the expiration of five days after notice of intended cancellation has been given in writing to the governing body of the county by registered mail or personal delivery of such notice."
Reference revised
SECTION 1566. Section 58-25-80 of the 1976 Code is amended to read:
"Section 58-25-80. Each authority established, including any formed under Chapter 25 of Title 58 of the 1976 Code prior to the effective date of this chapter, exists for nonprofit and public purposes and is a public agency, and it is found and declared that the carrying out of the purpose of each authority is exclusively for public benefit and its property is public property. No authority shall pay any state or local ad valorem, income, sales, fuel, excise, or other use taxes or other taxes from which municipalities and counties are exempt. The South Carolina Department of Revenue and Taxation is responsible for promulgating regulations necessary to effect fully this provision for tax exemption. The authority or operator providing public transportation on behalf of an authority may participate in the State Retirement System and utilize the services of the State Purchasing Department of the Division of General Services and any other joint activity of the State carried on for the benefit of state agencies and political subdivisions of the State. Operators providing public transportation on behalf of an authority shall not pay state and local fuel taxes from which municipalities and counties are exempt."
Citations changed
SECTION 1567. Section 58-27-690 of the 1976 Code, as last amended by Section 57 of Act No. 173 of 1987, is further amended to read:
"Section 58-27-690. Nothing in Title 28, Chapter 2 (Sections 28-2-10 et seq.), and Sections 1-11-110, 3-5-50, 3-5-100, 3-5-330, 4-17-20, 5-27-150, 5-31-420, 5-31-430, 5-31-440, 5-31-610, 5-35-10, 6-11-130, 6-23-290, 13-1-350, 13-11-80, 24-1-230, 28-3-20, 28-3-30, 28-3-140, 28-3-460, 46-19-130, 48-11-110, 48-15-30, 48-15-50, 48-17-30, 48-17-50, 49-17-1050, 49-19-1060, 49-19-1440, 50-13-1920, 50-19-1320, 51-1-560, 54-3-150, 55-9-80, 55-11-10, 57-3-700, 57-5-370, 57-5-380, 57-21-200, 57-25-190, 57-25-470, 57-25-680, 57-27-70, 58-9-2030, 58-15-410, 58-17-1200, 13-1-1330, 58-27-130, 58-31-50, 59-19-200, 59-105-40, 59-117-70, 59-123-90 shall modify, abridge, or repeal Sections 58-27-650, 58-27-670, 58-27-680, 58-27-1280, or 58-27-1360."
References revised
SECTION 1568. Section 58-33-140 of the 1976 Code is amended to read:
"Section 58-33-140. (1) The parties to a certification proceeding shall include:
(a) The applicant.
(b) The Department of Health and Environmental Control, the Department of Natural Resources, and the Department of Parks, Recreation and Tourism.
(c) Each municipality and government agency entitled to receive service of a copy of the application under subsection (2) of Section 58-33-120 if it has filed with the commission a notice of intervention as a party within thirty days after the date it was served with a copy of the application.
(d) Any person residing in a municipality entitled to receive service of a copy of the application under subsection (2) of Section 58-33-120, any domestic nonprofit organization, formed in whole or in part to promote conservation or natural beauty, to protect the environment, personal health or other biological values, to preserve historical sites, to promote consumer interest, to represent commercial and industrial groups, or to promote the orderly development of the area in which the facility is to be located; or any other person, if such a person or organization has petitioned the commission for leave to intervene as a party, within thirty days after the date given in the published notice as the date for filing the application, and if the petition has been granted by the commission for good cause shown.
(2) Any person may make a limited appearance in the sixty days after the date given in the published notice as the date for filing the application. No person making a limited appearance shall be a party or shall have the right to present oral testimony or argument or cross-examine witnesses.
(3) The commission may, in extraordinary circumstances for good cause shown, and giving consideration to the need for timely start of construction of the facility, grant a petition for leave to intervene as a party to participate in subsequent phases of the proceeding, filed by a municipality, government agency, person or organization which is identified in paragraphs (b) or (c) of subsection (1) of this section, but which failed to file a timely notice of intervention or petition for leave to intervene, as the case may be."
References revised
SECTION 1569. Section 58-35-50 of the 1976 Code is amended to read:
"Section 58-35-50. Excavation is exempt from the provisions of this chapter under the following conditions:
(a) When conducted after individual contacts with public utilities or after joint preconstruction conferences with public utilities and the person proposing the excavation or demolition has a statement in writing from all public utilities operating in the area that the proposed activity was reviewed and notification provided; or
(b) When the Department of Transportation or a public utility is carrying out excavation or demolition entirely on and within an easement or right-of-way owned and controlled or controlled by that public utility or department and where no other public utility's facilities have been permitted, are existing, or are likely to exist; or
(c) When a landowner installs or has installed facilities for his own purposes and under his direction on his own land provided: (1) he or his authorized representative has general knowledge of the location of underground utilities on his lands; and (2) the work location is remote from these utilities or facilities of a public utility serving the landowner or others.
(d) In those localities or communities and within recognized boundaries, the Department of Transportation and public utilities are exempt if they (1) are doing minor excavations such as for replacing or setting one or two poles, digging test holes, handholes, normal roadway maintenance, or similar minor excavations, and (2) there is a local agreement between public utilities and the Department of Transportation which includes notification before excavation or demolition."
Name changed
SECTION 1570. Section 59-20-20(3) of the 1976 Code is amended to read:
"(3) (Until Education Finance Act allocations for Fiscal Year 1991-1992, item (3) will read as follows: `Index of taxpaying ability' means an index of a local district's relative fiscal capacity in relation to that of all other districts of the State based on the full market value of all taxable property of the district assessed on the basis of property classification assessment ratios set forth in Article 3, Chapter 43 of Title 12. The county auditor shall provide to the Department of Revenue and Taxation the assessed value of property in each of the school districts of the county not later than February first of each year. The index must be used to calculate each district's share of the revenue to be raised locally for the foundation program. The index must include an imputed value for the property tax base implicitly generating impact aid revenue. The property tax base must be imputed at two-thirds the average ratio of all true value assessed property value statewide to prior year local revenue statewide in the foundation program, the resulting product multiplied times the average impact aid receipts during the prior three years. If impact aid receipts during the federal fiscal year are less than the average receipts for the prior three years, then state aid to the impact aid districts must be adjusted in the final payment for the state fiscal year. If the State Department of Education determines from fiscal simulations that the school finance system does not meet requirements of Section 5(d) of P. L. 81-874, the Department of Revenue and Taxation shall exclude an imputed value of impact aid receipts from the index of taxpaying ability.
The final index must be determined annually by the Department of Revenue and Taxation on the basis of the most current sales ratio data available based on studies made pursuant to Section 12-43-250 for assessed property within a school district. The sales ratio data utilized must be based on annual ratio studies made within the previous two calendar years. The Department of Revenue and Taxation shall provide a preliminary index to the State Department of Education not later than March first, and the State Department of Education shall provide information contained in the index to school districts not later than March fifteenth. Not later than May first, the Department of Revenue and Taxation shall provide the final index to the State Department of Education and to the auditor of each county who shall provide the index to any governmental entity responsible for approving or levying of millages for school purposes. The final index may not be changed during the applicable school year. Changes and corrections occurring during the year must be reflected in the index for the following year. When the assessment of property is under appeal and the appeal extends beyond the year in which the assessment made pursuant to Section 12-43-305 is applied, the Department of Revenue and Taxation shall adjust the index of taxpaying ability in the year in which the appeal is resolved by the amount of any difference between the assessments. Any school district is entitled to a hearing before the Department of Revenue and Taxation to review its designated index of taxpaying ability within thirty days of filing a request for the hearing. The data gathered by the Department of Revenue and Taxation for the purpose of determining an annual index must be preserved as public records in the offices of the Department of Revenue and Taxation for four years. The raw information gathered from the various county officers reflecting the representative sales within the school districts, the consideration, and the reported market value or assessed value for each sale are a part of the public records so preserved. The Department of Revenue and Taxation shall file a statement stating the methodology employed in making the annual determination of the index and refer to all sources of factual information used in making the determination. All work sheets, computer printouts, and the actual calculation must be included as the public records to be preserved by the Department of Revenue and Taxation. In determining sales to assessment ratio, the Department of Revenue and Taxation shall use only reported consideration on sales for which deeds have been placed on public record. Where sufficient sales data is not available, the Department of Revenue and Taxation shall make appraisals in lieu of sales in order to determine the index. The appraisals, including all working papers, must be included as the public records to be preserved by the Department of Revenue and Taxation. With respect to school districts within counties where abstracts of duplicates reflecting the assessed value have been filed pursuant to Section 12-39-290, the same having been adopted by the auditor under Article 3, Chapter 43 of Title 12, the index must be on the basis of the value of the property as stated in the abstracts as adjusted by sales ratio studies up to full assessments based on full fair market value.
(Effective beginning with Education Finance Act allocations for Fiscal Year 1991-1992, item (3) will read as follows:)
`Index of taxpaying ability' means an index of a local district's relative fiscal capacity in relation to that of all other districts of the State based on the full market value of all taxable property of the district assessed on the basis of property classification assessment ratios set forth in Article 3, Chapter 43 of Title 12 for the second completed taxable year preceding the fiscal year in which the index is used. The county auditor shall provide to the Department of Revenue and Taxation the assessed value of property in each of the school districts of the county not later than February first of each year. The index must be used to calculate each district's share of the revenue to be raised locally for the foundation program. The index must include an imputed value for the property tax base implicitly generating impact aid revenue. The property tax base must be imputed at two-thirds the average ratio of all true value assessed property value statewide to prior year local revenue statewide in the foundation program, the resulting product multiplied times the average impact aid receipts during the prior three years. If impact aid receipts during the federal fiscal year are less than the average receipts for the prior three years, then state aid to the impact aid districts must be adjusted in the final payment for the state fiscal year. If the State Department of Education determines from fiscal simulations that the school finance system does not meet requirements of Section 5(D) of P. L. 81-874, the Department of Revenue and Taxation shall exclude an imputed value of impact aid receipts from the index of taxpaying ability.
The index must be determined annually by the Department of Revenue and Taxation on the basis of the most current sales ratio data available based on studies made pursuant to Section 12-43-250 for assessed property within a school district. The sales ratio data utilized must be based on annual ratio studies made within the previous two calendar years. The Department of Revenue and Taxation shall provide the index not later than March first to the State Department of Education and to the auditor of each county who shall provide the index to any governmental entity responsible for approving or levying of millages for school purposes. Changes and corrections may be made to the index before March first but no change is allowed after that date. When the assessment of property is under appeal and the appeal extends beyond the year in which the assessment made pursuant to Section 12-43-305 is applied, the Department of Revenue and Taxation shall adjust the index of taxpaying ability in the year in which the appeal is resolved by the amount of any difference between the assessments. Any school district is entitled to a hearing before the Department of Revenue and Taxation to review its designated index of taxpaying ability within thirty days of filing a request for the hearing. The data gathered by the Department of Revenue and Taxation for the purpose of determining an annual index must be preserved as public records in the offices of the Department of Revenue and Taxation for four years. The raw information gathered from the various county officers reflecting the representative sales within the school districts, the consideration, and the reported market value or assessed value for each sale are a part of the public records so preserved. The Department of Revenue and Taxation shall file a statement stating the methodology employed in making the annual determination of the index and refer to all sources of factual information used in making the determination. All work sheets, computer printouts, and the actual calculation must be included as the public records to be preserved by the Department of Revenue and Taxation. In determining sales to assessment ratio, the Department of Revenue and Taxation shall use only reported consideration on sales for which deeds have been placed on public record. Where sufficient sales data is not available, the Department of Revenue and Taxation shall make appraisals in lieu of sales in order to determine the index. The appraisals, including all working papers, must be included as the public records to be preserved by the Department of Revenue and Taxation. With respect to school districts within counties where abstracts of duplicates reflecting the assessed value have been filed pursuant to Section 12-39-290, the same having been adopted by the auditors under Article 3, Chapter 43 of Title 12, the index must be on the basis of the value of the property as stated in the abstracts as adjusted by sales ratio studies up to full assessments based on full fair market value."
Name changed
SECTION 1571. Section 59-53-10 of the 1976 Code is amended to read:
"Section 59-53-10. There is hereby created the State Board for Technical and Comprehensive Education (Board) as a continuing body and agency and instrumentality of the State. The board shall consist of ten members, appointed by the Governor for terms of six years and until successors are appointed and qualify. One member must be appointed from each congressional district, with the advice and consent of the legislative delegations of the congressional district involved, and be a resident thereof. There must be four at-large members appointed by the Governor, one of whom must be experienced in the policy development of secondary vocational education and adult basic and adult secondary education and one of whom must be experienced in the policy development of federal job training programs. The initial terms of office of board members representing congressional districts are for a period of years corresponding to the numerical designation of their respective districts. The initial terms of office of the first at-large members of the board are for three and six years determined by lot and the initial term of the at-large member experienced in the policy development of secondary vocational education and adult basic and adult secondary education is three years and the initial term of the at-large member experienced in the policy development of federal job training programs is six years. In addition, the State Superintendent of Education and the Director of the Department of Commerce shall serve as ex officio members of the board. The chairman must be elected by the board. In case a vacancy shall occur a member must be appointed in the same manner for the remainder of the unexpired term. The board shall enter into contracts and make regulations, including policies and guidelines, as considered necessary to fulfill the intent of Sections 59-5-61, 59-43-20, 59-53-10, 59-53-20, 59-53-40, 59-53-50, 59-53-57, 59-54-10 through 59-54-60, subject to the approval of the General Assembly."
Reference revised
SECTION 1572. Section 59-53-420(14) of the 1976 Code is amended to read:
"(14) To exercise the power of eminent domain in the manner provided by the general laws of this State for procedure by any county, municipality or authority organized under the laws of this State, by the Department of Transportation, by railroad corporations or in any manner provided by law, as the council may, in its discretion, elect, including the procedure provided by Chapter 5, Title 28 (Sections 28-5-10 to 28-5-390)."
Reference revised
SECTION 1573. Section 59-53-2050 of the 1976 Code is amended to read:
"Section 59-53-2050. A person may apply for a reduction in motorcycle insurance rates under the jurisdiction of the Department of Insurance upon proof of satisfactory completion of the program."
Name changed
SECTION 1574. Section 59-54-40 of the 1976 Code is amended to read:
"Section 59-54-40. (A) An area occupational training advisory committee is created for each of the service areas presently established by the State Board for Technical and Comprehensive Education for the various technical colleges. The purpose of the Area Occupational Training Advisory Committee is to increase coordination, articulation, and effectiveness among the various vocational, technical, occupational, and adult education and economic development programs in that area.
(B) Each area occupational training advisory committee will have the responsibility of assuring that each area technical college commission and appropriate local school boards shall enter into memoranda of agreement that will demonstrate the following:
(1) cooperation between the technical college and the vocational school in the planning and delivery of adult vocational education;
(2) articulation of secondary vocational courses to post-secondary courses in the curricula of the technical college;
(3) coordination among local boards with other local community agencies, literacy councils, private and nonprofit groups in planning and delivering adult basic education, adult secondary education, and literacy programs.
(C) The membership of each area occupational training advisory committee is as follows:
(1) two private sector representatives from the area technical college commission appointed by the State Board for Technical and Comprehensive Education;
(2) two professional representatives from the area technical college appointed by the State Board for Technical and Comprehensive Education;
(3) one private sector representative from the governing or advisory board for vocation education programs in the area appointed by the State Board of Education;
(4) one faculty member or administrator for vocational education programs in the area, appointed by the State Board of Education;
(5) two school superintendents in the area, appointed by the State Board of Education;
(6) two private sector representatives from the area appointed by the Director of the Department of Commerce;
(7) two private sector representatives from the area appointed by the Governor.
(D) With the joint approval of the State Board for Technical and Comprehensive Education, the State Board of Education, and the Director of the Department of Commerce, an area occupational job training advisory committee may expand its membership in the manner approved by these boards or councils in order to respond to particular local needs.
(E) Each advisory committee shall elect a chairman and such other officers as they consider necessary, the chairman to be elected from among the private sector representatives on the committee. Each committee must meet within ninety days following the effective date of this chapter and the Governor's Office working through the state technical education system and the Department of Education shall convene the first meeting.
(F) Committee and staff expenses must be paid by the technical college within the service area.
(G) Vacancies on each advisory committee must be filled by appointment in the same manner of original appointment.
(H) The members of each area advisory committee so appointed shall serve until the advisory committee is dissolved as provided in this section.
(I) Each area occupational advisory committee must prepare a written report analyzing the cooperation, articulation, and coordination achieved in the memoranda of agreement between technical college commissions and local school boards. The written report must be completed and provided to the State Occupational Training Advisory Committee, the State Board of Education, the State Board for Technical and Comprehensive Education and the affected technical college commission and local school board within sixty days after the execution of the memoranda of agreement. The written report shall contain minority or dissenting views of members of the area occupational advisory committee, if any.
(J) The area occupational advisory committees herein established are dissolved two years after the effective date of this chapter."
Reference revised
SECTION 1575. Section 59-67-20 of the 1976 Code is amended to read:
"Section 59-67-20. The State Board of Education, by and with the advice of the Department of Public Safety, shall adopt and enforce regulations not inconsistent with Chapter 5 of Title 56 to govern the design and operation of all school buses used for the transportation of school children when owned and operated by any school district or privately owned and operated under contract with any school district in this State and such regulations shall by reference be made a part of any such contract with a school district. Every school district, its officers and employees, and every person employed under contract by a school district shall be subject to such regulations. Any officer or employee of any school district who violates any of such regulations or fails to include the obligation to comply with such regulations in any contract executed by him on behalf of a school district shall be guilty of misconduct and subject to removal from office or employment. Any person operating a school bus under contract with a school district who fails to comply with any such regulations shall be guilty of breach of contract and such contract shall be canceled after notice and hearing by the responsible officers of such school district."
Reference revised
SECTION 1576. Section 59-67-260 of the 1976 Code is amended to read:
"Section 59-67-260. The Department of Public Safety shall have the operation of school buses spot checked periodically and report all infractions of the laws or misconduct of any kind on the part of the drivers to the chairman of the board of trustees of the school that may be affected thereby."
References revised
SECTION 1577. Section 59-67-540 of the 1976 Code is amended to read:
"Section 59-67-540. The Department of Transportation shall be responsible for providing all supplies required for the operation of state-owned school buses and for maintaining them in efficient and safe mechanical condition. The department shall be reimbursed periodically by the State Board of Education for expenditures incident to the operation and maintenance of buses, but no charge by, or reimbursement to, the Department of Transportation shall be made except to cover direct and additional expenses incurred by the department on account of the performance of this service. Provided, however, that the Board of Education shall have authority to establish and operate maintenance and supply stations, on an experimental or permanent basis, if it should be determined to be of advantage to the State, and in connection therewith to acquire real property by purchase or lease."
References revised
SECTION 1578. Section 59-67-570 of the 1976 Code is amended to read:
"Section 59-67-570. The State Board of Education may adopt such rules and regulations as may be necessary to carry out the intent and purposes of this article. Such rules and regulations shall have the full force and effect of law. But rules and regulations that affect the functions of the Department of Public Safety under this article or the operation of buses on the highways shall be adopted only jointly with the Department of Public Safety."
Reference revised
SECTION 1579. Section 59-117-90 of the 1976 Code is amended to read:
"Section 59-117-90. The University of South Carolina is authorized to close any public road or street which is bordered on two sides by property now owned by the University or hereafter acquired by it. Provided, that no road or street shall be closed which is situated within the corporate limits of the city of Columbia without concurrence of the governing body of the city. Provided, further, that no section of the state highway system shall be closed without concurrence of the Department of Transportation."
Reference revised
SECTION 1580. Section 59-137-50 (B) of the 1976 Code is amended to read:
"(B) The state agencies with responsibility under subsection (A) are the Department of Disabilities and Special Needs, the School for the Deaf and the Blind, the Commission for the Blind, the Department of Health and Environmental Control, the Department of Mental Health, and the State Department of Social Services."
Duties and functions transferred
SECTION 1581. As of July 1, 1993:
(1) All of the powers, duties, functions, rights, and privileges of the South Carolina Alcoholic Beverage Control Commission concerning licensing and assessment of penalties for administrative violation of the law or regulations are transferred to the South Carolina Department of Revenue and Taxation.
(2) All of the powers, duties, functions, rights, and privileges of the South Carolina Alcoholic Beverage Control Commission concerning law enforcement, regulation enforcement, and inspections are transferred to the South Carolina Law Enforcement Division.
(3) When the law enforcement personnel of the South Carolina Alcoholic Beverage Control Commission are transferred to the South Carolina Law Enforcement Division by the provisions of this act, they must continue to meet those qualifications and criteria as formerly applied to them at the South Carolina Alcoholic Beverage Control Commission but are not automatically considered to have been appointed South Carolina Law Enforcement Division agents under Article 3, Chapter 4, Title 12 of the 1976 Code unless further action is taken to accomplish the same by the Governor and the Chief of the South Carolina Law Enforcement Division.
(4) All fines, fees, forfeitures, or revenues imposed or secured by the divisions of the South Carolina Alcoholic Beverage Control Commission shall be transferred to the South Carolina Department of Revenue and Taxation or the South Carolina Law Enforcement Division, depending on the nature of the fees and as dictated by the State Budget and Control Board and must continue to be used and expended for those purposes now provided by law. If a portion of these fines, fees, forfeitures, or revenues were previously required to be used for the support, benefit, or expense of the licensing and law enforcement personnel, these funds must continue to be used for these purposes.
(5) The terms of the members of the South Carolina Alcoholic Beverage Control Commission are terminated upon the effective date of this act."
Alcoholic beverage, beer and wine regulations
SECTION 1582. Chapter 1, Title 61 of the 1976 Code is amended to read:
"CHAPTER 1
General Provisions
Section 61-1-10. (A) As used in Title 61, unless the context clearly requires otherwise:
(1) `Department' means the South Carolina Department of Revenue and Taxation.
(2) `Commission' means the three-member governing body of the Department of Revenue and Taxation.
(3) `Division' means the South Carolina Law Enforcement Division.
(4) `Hearing officer' means an Alcoholic Beverage Control Hearing Officer.
(B) From July 1, 1993 until February 28, 1994, the commissioners of the Department of Revenue and Taxation, in consultation with the South Carolina Attorney General, shall appoint attorneys who are qualified to act as alcoholic beverage control hearing officers, by reason of training, education, experience, or knowledge of the law. In order to be considered qualified to act as a hearing officer, a person:
(1) must be licensed to practice law in this State;
(2) must have been licensed to practice law for at least three years;
(3) must have knowledge of and experience with the South Carolina Administrative Procedures Act;
(4) must have knowledge of and experience with the laws and regulations governing alcoholic beverages, beer, and wine;
(5) must have trial experience;
(6) must meet other qualifications the department and the Attorney General determines reasonably necessary for the proper administration of the laws and regulations governing alcoholic beverages, beer, and wine.
(C) A hearing officer may not perform any duties or exercise any authority on matters involving the laws and regulations governing alcoholic beverages, beer, and wine for a premises that is located in the county in which the hearing officer resides or maintains his law office or offices.
(D) Hearing officers must be paid an hourly rate approved by the department and must be reimbursed for actual and reasonable travel expenses incurred in the performance of their duties as hearing officers.
Section 61-1-20. (A) Alcoholic Beverage Control Hearing Officers have the following duties:
(1) to hold and conduct hearings on protested applications and renewals;
(2) to hold and conduct hearings on contested violations;
(3) to issue subpoenas requiring the attendance of witnesses and the production of records, memoranda, papers, and other documents for consideration at hearings or before any law enforcement officer;
(4) to administer oaths;
(5) to take testimony; and
(6) to prepare and issue orders to the parties involved within ten business days of the completion of the hearing.
(B) Alcoholic Beverage Control Hearing Officers are authorized:
(1) to suspend or revoke licenses and permits on behalf of the department in all cases where the department is authorized by the laws and regulations governing alcoholic beverages, beer, and wine to suspend or revoke licenses and permits;
(2) to impose a monetary penalty as an alternate to revocation or suspension on behalf of the department in all cases where the department has the authority to suspend or revoke a license or permit;
(3) to suspend payment of any monetary penalty that has been imposed instead of revocation or suspension of a license or permit on behalf of the department in all cases where the department has the authority to do so; and
(4) to perform all adjudicatory functions of the department relating to the laws and regulations governing alcoholic beverages, beer, and wine.
Section 61-1-25. Hearings conducted by a South Carolina Beverage Control Hearing Officer on protested applications, contested renewals, and contested violations must be held in one or more central locations approved by the department within the congressional district in which the premises is located for which the license, permit, renewal or violation is being protested or contested.
Section 61-1-30. In all cases in which the department has the authority to revoke or suspend a license or permit, impose a monetary penalty instead of revoking or suspending a license or permit, suspend payment of a monetary penalty imposed, or perform other adjudicatory functions relating to the laws and regulations governing alcoholic beverages, beer, and wine, this authority shall be exercised through the Alcoholic Beverage Control Hearing Officers. All duties performed and authority exercised by the hearing officers are considered to be performed and exercised by and on behalf of the South Carolina Department of Revenue and Taxation. This does not delete or supersede the requirement that any appeal of a decision made by a hearing officer must be made to the department.
Section 61-1-40. Any decision of an Alcoholic Beverage Control Hearing Officer revoking or suspending a license or permit, imposing a monetary penalty instead of revoking or suspending a license or permit, suspending payment of a monetary penalty imposed, or made pursuant to performing an adjudicatory function, may be appealed to the South Carolina Department of Revenue and Taxation. Notice of such appeal must be served on the department within ten days after receipt of notification of a decision.
If an appeal is made to the department, the department shall review the decision of the hearing officer and, if good grounds be shown therefor, reconsider the evidence, receive further evidence, rehear the parties or their representatives and, if proper, amend the decision. In reviewing such appeal, the department may hold and conduct hearings, issue subpoenas requiring the attendance of witnesses and the production of records, memoranda, papers, and other documents for consideration at such hearings. The department may administer oaths and take testimony thereunder.
A decision of the hearing officer, if not reviewed in due time, or a decision of the department upon such review is conclusive and binding as to all questions of fact.
An appeal from a decision of the department or an appeal of errors of law made by the department may be made within thirty days after receipt of notification of a decision to the court of common pleas for the county of the appellant's residence under the same terms and conditions as govern appeals in ordinary civil actions. Notice of appeal must state the grounds of the appeal or the alleged errors of law.
Any monetary penalty imposed by the hearing officer, department, or court may be paid under protest. No appeal acts as a supersedeas.
Section 61-1-50. If an Alcoholic Beverage Control Hearing Officer determines he has a conflict of interest pursuant to Canon 3, Rule 501(C) and (D), South Carolina Appellate Court Rules, he must disqualify himself from the proceeding. Upon a determination by a hearing officer that no conflict of interest exists, the person involved in the proceeding or his representative may request the full department to make a determination as to whether or not the hearing officer must disqualify himself. Upon such request, the proceeding shall be stayed. The department must make this determination pursuant to Canon 3, Rule 501 (C) and (D) and notify all parties involved within three days of the request. Upon determination of a conflict, the department may designate another hearing officer to hear the matter.
Section 61-1-55. For all matters arising under Section 61-1-20 on or after March 1, 1994, the powers, duties and responsibilities of the hearing officer enumerated in Sections 6-1-10, 6-1-20, 61-1-25, 61-1-30, 61-1-40, and 61-1-50 shall be assumed by the Administrative Law Judge Division under the provisions of Chapter 23 of Title 1 of the 1976 Code. Effective March 1, 1994, the provisions of Section 61-1-10(A)(4), 61-1-10(B), (C), and (D), 61-1-20, 61-1-25, 61-1-30, 61-1-40 and 61-1-50 are repealed.
Section 61-1-60. The South Carolina Department of Revenue and Taxation and the South Carolina Law Enforcement Division shall employ personnel necessary to administer and enforce the laws and regulations governing alcoholic beverages, beer, and wine. Salaries of these personnel shall be set by the department and the division, as applicable.
Section 61-1-65. (A) The chief of the South Carolina Law Enforcement Division and the commissioners of the South Carolina Department of Revenue and Taxation directly or indirectly, (a) individually, (b) as a member of a partnership or of an association, (c) as a member or stockholder of a corporation, or (d) as a relative to any person by blood or marriage within the second degree shall not:
(1) have any interest in the manufacture of or dealing in alcoholic liquors or in any enterprise or industry in which alcoholic liquors are required;
(2) receive any commission or profit on the purchase or sale of alcoholic liquors by any person; or
(3) have any interest in or mortgage or deed of trust on any land or building where alcoholic liquors are manufactured for sale, offered for sale, or sold or in any personal property used therein.
(B) No employee of the department may license, permit, or participate in the licensing or permitting of any person, business, or organization which requires a license or permit for lawful operation under the law and regulations governing alcoholic beverages, beer, and wine if the employee has an ownership interest in that person, business, or organization.
(C) No employee of the division may enforce any law or regulation governing alcoholic beverages, beer, and wine against any person, business, or organization which requires a license or permit for lawful operation under the law and regulations governing alcoholic beverages, beer, and wine if the employee has an ownership interest in that person, business, or organization.
Section 61-1-70. The South Carolina Department of Revenue and Taxation and the South Carolina Law Enforcement Division are authorized to promulgate regulations necessary to carry out the duties imposed upon them by law .
Section 61-1-80. The department may impose a monetary penalty as an alternate to revocation or suspension in all cases where the department has the authority to suspend or revoke a license or permit. The department in its discretion may also suspend payment of the monetary penalty imposed.
Section 61-1-90. Neither the South Carolina Department of Revenue and Taxation nor the South Carolina Law Enforcement Division shall have the authority to regulate the size, type, or number of beer signs displayed on the premises of any retail or wholesale beer dealer.
Section 61-1-95. A person shall promptly surrender a license or permit issued under the provisions of this title upon request of the department. All licenses and permits are the property of the department and are not transferable. All licenses and permits must be immediately surrendered to the department upon the termination of a business, or upon a change of ownership, possession, or control of a corporation or business entity, or upon a change in the character of the property, facilities, or nature of the business activity for which a license or permit has been obtained. The transfer of twenty-five percent or more of corporate stock is considered a change in ownership.
All licenses and permits must be issued for a designated location and may not be transferred to any other location. A separate license or permit is required for each separate location of a business.
When a license or permit is suspended or revoked, no partner or person with a financial interest of any kind in the business or premises, nor a person within the third degree of kinship to the person to whom a license or permit has been issued, may be issued a license or permit for the premises concerned.
A person whose license or permit has been suspended or revoked for a particular premises is not eligible for a license or permit at any other location during the period the suspension or revocation is in effect, and the department may suspend or revoke all other licenses or permits held by the person if the suspended or revoked premises is within close proximity.
Section 61-1-110. The South Carolina Department of Revenue and Taxation shall accept checks, in addition to any other method of payment it considers appropriate, in payment of the fees due for any license or permit it issues as provided by law. If the check is dishonored for any reason the department may suspend the license or permit without notice or a hearing until the applicant makes the payment in a form satisfactory to the department and pays a reinstatement fee of fifty dollars. The department may retain the reinstatement fee in order to offset the cost of this provision."
Authority to regulate devolved on Department of Revenue and Taxation
SECTION 1583. Chapter 3, Title 61 of the 1976 Code is amended to read:
"CHAPTER 3
Alcohol Beverage Control Act
Article 1
General Provisions
Section 61-3-10. This chapter, Chapter 7, and Article 3 of Chapter 13, shall be known and may be cited as `The Alcoholic Beverage Control Act'.
Section 61-3-20. As used in this chapter, Chapter 7, and Article 3 of Chapter 13, unless the context clearly requires otherwise:
(1) The words `alcoholic liquors' mean any spirituous malt, vinous, fermented, brewed (whether lager or rice beer) or other liquors or any compound or mixture thereof by whatever name called or known which contains alcohol and is used as a beverage, but shall not extend to:
(a) wine when manufactured or made for home consumption and which is not sold by the maker thereof or by any other person, or
(b) any beverage declared by statute to be nonalcoholic or nonintoxicating;
(2) The word `manufacturer' means any person operating a plant or place of business within this State for distilling, rectifying, brewing, fermenting, blending or bottling any alcoholic liquors;
(3) The word `wholesaler' means any person who shall from without the State purchase, acquire or import or who shall purchase or acquire from a manufacturer within the State any alcoholic liquor for resale; and
(4) The words `retail dealer' shall mean any holder of a license issued under the provisions of this chapter, Chapter 7, and Article 3 of Chapter 13, other than a manufacturer or wholesaler .
Section 61-3-30. No provision in this chapter, Chapter 7, or Article 3 of Chapter 13, shall apply to alcohol intended for use in the manufacture and sale of any of the following when they are unfit for beverage purposes, namely:
(1) Denatured alcohol produced and used pursuant to acts of Congress and regulations promulgated thereunder;
(2) Patent, proprietary, medicinal, pharmaceutical, antiseptic and toilet preparations;
(3) Flavoring extracts, syrups, and food products; and
(4) Scientific, chemical, mechanical and industrial products.
Any person who shall knowingly sell any of the products enumerated in paragraphs (1), (2), (3) and (4) for beverage purposes shall be subject to the penalties provided in Section 61-13-410. No provision of this chapter, Chapter 7, or Article 3 of Chapter 13, shall apply to ethyl alcohol intended for use by hospitals, colleges, governmental agencies and other permittees entitled to obtain such alcohol tax free, as provided by acts of Congress and regulations promulgated thereunder.
Section 61-3-40. This chapter, Chapter 7, and Article 3 of Chapter 13 are hereby declared to be complementary to and not in conflict with the laws providing for the legal sale of beers, wines and other vinous, fermented or malt liquors.
Section 61-3-50. The functions, duties and powers set forth in this chapter, Chapter 7, and Article 3 of Chapter 13, are hereby vested in the South Carolina Department of Revenue and Taxation and the South Carolina Law Enforcement Division.
Section 61-3-70. The department and the division may from time to time make such reasonable regulations, not inconsistent with this chapter, Chapter 7, and Article 3 of Chapter 13, or with the general laws of the State, as the department or the division shall deem necessary:
(1) to carry out and enforce the purposes and provisions of this chapter, Chapter 7, and Article 3 of Chapter 13; or
(2) to prevent the illegal manufacture, bottling, sale, distribution and transportation of alcoholic liquors or any one or more of such illegal acts,
and the department and the division may from time to time alter, repeal, or amend such regulations or any of them.
Such regulations shall be filed and published as provided for in Sections 1-1-210 to 1-1-240 and shall have the force and effect of law as provided in such sections. The department and the division shall give additional notice thereof to all licensees in such manner as they may deem proper.
The wilful violation of any rule or regulation made under the provisions of this section and having the force and effect of law shall constitute a violation of this chapter, Chapter 7, and Article 3 of Chapter 13.
Section 61-3-80. The department and the division shall adopt such regulations as they may deem necessary and proper to effect an equitable distribution of alcoholic liquors in this State.
Section 61-3-90. The department and the division shall, by regulation, cause the frequent analysis of alcoholic liquors sold within this State and provide procedure for obtaining samples for the purpose thereof.
Section 61-3-100. All alcoholic liquors received by a licensed wholesale liquor dealer shall have the revenue stamps as may be required by law affixed thereon for the taxes levied pursuant to Sections 12-33-230 and 12-33-240 or shall be stored in a separate compartment of a wholesaler's place of business. The storing of stamped alcoholic liquors in the same compartment with unstamped alcoholic liquors is prohibited. Alcoholic liquors removed from an unstamped compartment must have the proper tax stamps immediately affixed thereto unless shipped to a Federal Government reservation.
Section 61-3-110. The department, through the hearing officers and upon appeal of a decision of a hearing officer pursuant to Section 61-1-40, may hold and conduct hearings, issue subpoenas requiring the attendance of witnesses and the production of records, memoranda, papers, and other documents for consideration at such hearings and administer oaths and take testimony thereunder.
Article 3
Provisions Relating to
Department of Revenue and Taxation, Members and
Employees, Law Enforcement Division, Employees
Section 61-3-220. The division may employ such inspectors or agents as may be necessary for the proper administration and enforcement of the provisions of this chapter, Chapter 7, and Article 3 of Chapter 13 and Chapter 33 of Title 12. The salaries of said inspectors or agents shall be fixed by the division and shall be payable as an expense of the administration of this chapter, Chapter 7, and Article 3 of Chapter 13. The Governor shall commission as state constables such inspectors or agents as are certified to him by the division in order that they shall have adequate authority as peace officers to enforce the provisions of this chapter, Chapter 7, and Article 3 of Chapter 13 and Chapter 33 of Title 12. Each inspector or agent shall, before entering upon the discharge of his duties, take and subscribe the oath of office as required by Article III, Section 26, of the Constitution of South Carolina, and also any additional oath required by law and shall give bond payable to the State, in form approved by the Attorney General, in the penal sum of five thousand dollars with some surety or guaranty company duly authorized to do business in South Carolina and approved by the division, as surety, conditioned upon the faithful discharge of his duties. The premiums on such bonds shall be paid as an expense of the administration of this chapter, Chapter 7, and Article 3 of Chapter 13 and the bonds shall be filed with and preserved by the Secretary of State.
Section 61-3-230. The department and the division may employ such clerical, stenographic and other personnel, including chemists, as may be necessary, in their judgment, to the administration of this chapter, Chapter 7, and Article 3 of Chapter 13, and may prescribe their duties and fix their compensation, which shall be payable as an expense of the administration of this chapter, Chapter 7, and Article 3 of Chapter 13. The department or the division may require any employee to furnish such bond conditioned upon the faithful performance of his duty as it may deem proper. The premium on any such bond shall be payable as an expense of the administration of this chapter, Chapter 7, and Article 3 of Chapter 13, and the bond shall be filed with and preserved by the department or the division.
Section 61-3-250. The State Budget and Control Board may purchase for the department and the division the furniture, equipment, and material determined by it to be necessary, the cost thereof to be payable as an expense of the administration of this chapter, Chapter 7, and Article 3 of Chapter 13.
Section 61-3-260. The department and the division each shall file annually with the Governor and the General Assembly its annual report as of June 30th of each year and shall report to the Governor on its affairs generally or on special matters connected therewith as often as he shall require.
Article 5
Issue of Licenses; Bond or Deposit
and Action Thereon
Section 61-3-410. The department shall have sole and exclusive power to grant, issue, suspend and revoke all licenses provided for in this chapter, Chapter 7, and Article 3 of Chapter 13. In protested and contested matters, this authority shall be exercised through the hearing officers. The department may grant, subject to revocation as provided in this chapter, Chapter 7, and Article 3 of Chapter 13, the following licenses:
(1) manufacturers' licenses which shall authorize the licensees to manufacture alcoholic liquors and to sell and deliver or ship them, in accordance with regulations of the department and the division, in bottles or in like closed containers to any person in this State who has a wholesaler's license granted under this chapter, Chapter 7, and Article 3 of Chapter 13, and in barrels, bottles, or other closed containers to persons outside of this State, except that no deliveries or shipments shall be made into any state the laws of which prohibit the consignee from receiving or selling such alcoholic liquors;
(2) wholesalers' licenses which shall authorize the licensees to purchase, store, keep, possess, import into this State, transport, sell and deliver alcoholic liquors in bottles or like closed containers, in accordance with regulations of the department and the division, to any person having a manufacturer's or retailer's license granted under this chapter, Chapter 7, and Article 3 of Chapter 13; and
(3) retail dealers' licenses which shall authorize the licensees to purchase alcoholic liquors from wholesalers having licenses granted under this chapter, Chapter 7, and Article 3 of Chapter 13, and to store, keep, possess and sell alcoholic liquors at retail for consumption in compliance with the provisions of this chapter, Chapter 7, and Article 3 of Chapter 13, and regulations of the department and the division not in conflict herewith.
Section 61-3-420. No person is eligible for a license under the provisions of this chapter, Chapter 7, and Article 3 of Chapter 13 if he or the person who will have actual control and management of the business proposed to be operated:
(1) is a minor;
(2) is not a resident of the State of South Carolina;
(3) is not of good repute; or
(4) has had a license under the provisions of this or any previous statute regulating the manufacture or sale of alcoholic liquors which has been revoked within the period of five years next preceding the filing of the applications;
unless the department in its discretion otherwise orders.
Section 61-3-440. The department shall not grant or issue any license provided for in this chapter, Chapter 7, and Article 3 of Chapter 13, if the place of business is within three hundred feet of any church, school, or playground situated within a municipality or within five hundred feet of any church, school, or playground situated outside of a municipality. Such distance shall be computed by following the shortest route of ordinary pedestrian or vehicular travel along the public thoroughfare from the nearest point of the grounds in use as part of such church, school, or playground, which, as used herein, shall be defined as follows:
(1) `Church', an establishment, other than a private dwelling, where religious services are usually conducted;
(2) `School', an establishment, other than a private dwelling where the usual processes of education are usually conducted; and
(3) `Playground', a place, other than grounds at a private dwelling, which is provided by the public or members of a community for recreation.
The above restrictions shall not apply to the renewal of licenses existing on July 10, 1960 or to locations then existing.
Section 61-3-450. No license shall be issued to more than one member of any household in this State.
Section 61-3-460. No more than three licenses shall be issued to any one licensee, and the licensee must be eligible for a license with respect to each store as prescribed by Section 61-3-420.
No more than three retail liquor licenses shall be issued for the use of any one corporation, association, partnership, or limited partnership. A corporation having the use of a retail liquor license that is owned by another corporation shall be deemed to be holding the retail liquor license for the use of the owning corporation.
Section 61-3-461. No person, directly or indirectly, individually or as a member of a partnership or an association, as a member or stockholder of a corporation or as a relative to any person by blood or marriage within the second degree, shall have any interest whatsoever in any retail liquor store licensed under this section except the three stores covered by his retail dealer's licenses, as provided for in Section 61-3-460.
Section 61-3-462. The provisions of Section 61-3-461 of the 1976 Code shall not apply to any person having interest in stores which will be prohibited by the provisions of such section on the effective date of Sections 61-3-461 and 61-3-462.
Section 61-3-470. The department may, in its discretion, after due investigation by the division, license retail dealers in unincorporated towns and in county communities when, in the opinion of the department, it would be to the interest of such unincorporated town or community to have a licensed retailer therein. But the department shall not license a retail dealer in any locality unless the department is assured that such locality is under proper police protection.
Section 61-3-480. If, in the judgment of the department, because of the number of retail outlets in any political subdivision, their location within the subdivision or for other reasons the citizens desiring to purchase alcoholic liquors therein are more than adequately served, it may, in its discretion, limit the further issuance of licenses in any such political subdivision.
Section 61-3-490. (A) Every person intending to apply for a license under this chapter, Chapter 7, and Article 3 of Chapter 13 shall advertise at least once a week for three consecutive weeks in a newspaper most likely to give notice to interested citizens of the county, city, or community in which the applicant proposes to engage in business. The department shall determine which newspapers meet the requirements of this section based on available circulation figures. However, if a newspaper is published within the county and historically has been the newspaper where the advertisements are published, the advertisements published in that newspaper meet the requirements of this section. The notice must be in large type, cover a space one column wide and not less than two inches deep, and state the type of license applied for and the exact location at which the proposed business is to be operated. Applicants for a beer or wine permit and an alcoholic liquor license may use the same advertisement for both if it is approved by the department.
(B) Notice also must be given by displaying a sign for fifteen days at the site of the proposed business. The sign must:
(1) state the type of license sought;
(2) tell an interested person where to protest the application;
(3) be in bold type;
(4) cover a space at least eleven inches wide and eight and one-half inches high;
(5) be posted and removed by an agent of the department.
Section 61-3-500. The provisions of Section 61-3-490, requiring publication of notice prior to applying for a license, shall not apply to any person licensed under the provisions of this chapter, Chapter 7, and Article 3 of Chapter 13, when such licensee again applies to the department for a new license similar to that which he already holds to engage in the same business at the same place.
Section 61-3-520. The department shall not issue any license until the license tax required by Chapter 33 of Title 12 has been paid by the applicant.
Section 61-3-530. Whenever a fine is imposed by the department on a beer, wine or liquor licensee for a violation and the licensee fails to pay such fine and ceases doing business on the premises where such violation occurred the department shall not require a subsequent tenant of the premises to pay such fine as a condition to being issued a beer, wine or liquor license. Provided, that this prohibition shall not apply to any person who is related, by blood within the third degree or marriage to, is in business with, or is acting for or on behalf of, directly or indirectly, the licensee so fined.
The burden shall be on the new tenant to prove that no such relationship exists between him and such licensee.
Section 61-3-540. Every person upon whose application for a manufacturer's or retail dealer's license the department has acted favorably shall, within ten days from the date of the receipt by him of notice of such action, either (a) file with the department a bond payable to the State in form approved by the department, in the penal sum of two thousand dollars, with some surety or guaranty company duly authorized to do business in South Carolina and approved by the department as surety, conditioned upon the lawful operation of the business covered by the license and the prompt payment of all license taxes provided in Chapter 33 of Title 12 or (b) deposit with the State Treasurer cash in the amount of two thousand dollars or securities sufficient, in the opinion of the State Treasurer, to secure adequately the amount of two thousand dollars, which deposit shall be made upon the same condition as that required to be set forth in such bond.
Section 61-3-550. Every person upon whose application for a wholesale liquor dealer's license the department has acted favorably shall, within ten days from the date he receives notice of favorable action by the department, either (a) file with the department a bond payable to the State, in such form as is approved by the department, in the penal sum which in the opinion of the department is sufficient to protect the interest of the State, but in no case shall such bond exceed five hundred thousand dollars, with some surety or guaranty company authorized to do business in this State and approved by the department as surety, conditioned upon the lawful operation of the business covered by the license and the prompt payment of all taxes imposed by Chapter 33 of Title 12; or (b) deposit with the State Treasurer cash in the amount of the above-mentioned bond or securities sufficient, in the opinion of the State Treasurer, to secure adequately the amount of the bond. The deposit shall be made upon the same condition as that required in the bond and shall be held by the State Treasurer without interest.
Section 61-3-560. Every violation of any of the provisions of this chapter, Chapter 7, and Article 3 of Chapter 13, or of Chapter 33 of Title 12 by the licensee, his agents or servants, shall constitute a breach of the condition of the bond filed or the deposit made by such licensee under Sections 61-3-540 or 61-3-550 and forfeiture of such bond or deposit shall be in addition to any other penalties or punishment provided therefor in this chapter, Chapter 7, and Article 3 of Chapter 13.
Section 61-3-570. In the event the department shall find that the condition of the bond filed or deposit made by any licensee under Sections 61-3-540 or 61-3-550 has been broken, the department shall bring an action in its name in the county in which the business of the licensee is or was located and operated to recover the amount of the bond. The action shall be against the licensee and his surety if the licensee filed a bond under Sections 61-3-540 or 61-3-550 and shall be against the licensee only if he deposited cash or securities under Sections 61-3-540 or 61-3-550.
Section 61-3-580. The cash deposited by the licensee shall be applied by the State Treasurer in payment of the judgment recovered against the licensee and, in the event securities were deposited by the licensee the State Treasurer shall, after fifteen days' advertisement, sell the same at public auction and apply the proceeds of such sale to the payment of the judgment recovered against the licensee, paying over to the licensee any amount remaining thereafter.
Section 61-3-590. The amounts received by the department or by the State Treasurer from the collection and payment of any judgments recovered under Section 61-3-570 shall be turned into the State Treasury to be disposed of in the manner provided in Chapter 33 of Title 12 for the disposition of license taxes collected under that chapter.
Section 61-3-600. Notwithstanding any other provision of law a permit not to exceed seventy-two hours to allow the possession and consumption of alcoholic beverages shall be issued upon request, from time to time, to the public authorities in charge of a publicly owned auditorium, coliseum, or armory. Such permit shall be for the benefit of any person leasing or otherwise lawfully using the subject premises.
Section 61-3-610. An establishment which offers meals to the public may secure a license from the department to purchase and possess liqueurs, wines, and similar alcoholic beverages used solely in the cooking and preparing of foods served by the establishment. Application for the license must be in a form and under conditions prescribed by the department. The license fee is fifty dollars. A person violating this section is guilty of a misdemeanor and, upon conviction, must be fined five hundred dollars, and other licenses he holds from the department must be revoked. The license provided in this section does not alter or limit the privileges or responsibilities for holders of licenses issued to authorize the possession, sale, and consumption of alcoholic beverages in containers of two ounces or less issued pursuant to Act 398 of 1967. Establishments so licensed may use alcoholic beverages in the preparation of food without obtaining the license provided in this section if only containers of two ounces or less are used in the food preparation.
Article 7
Expiration, Refusal, Suspension or
Revocation of Licenses
Section 61-3-710. (A) Licenses issued under this chapter expire biennially according to the county where the licensed location is situated. The expiration dates are the last day of:
(1) February in years which end in an:
(a) odd number for Allendale, Bamberg, Barnwell, Beaufort, and Berkeley counties;
(b) even number for Charleston, Clarendon, Colleton, Dorchester, Georgetown, Hampton, Jasper, and Williamsburg counties;
(2) May in years which end in an:
(a) odd number for Cherokee, Chester, Chesterfield, Darlington, Dillon, Fairfield, Florence, and Horry counties;
(b) even number for Lancaster, Marion, Marlboro, Union, and York counties;
(3) August in years which end in an:
(a) odd number for Calhoun, Kershaw, Lee, Orangeburg, and Sumter counties;
(b) even number for Richland County;
(4) November in years which end in an:
(a) odd number for Abbeville, Aiken, Anderson, Edgefield, Greenville, and Greenwood counties;
(b) even number for Laurens, Lexington, McCormick, Newberry, Oconee, Pickens, Saluda, and Spartanburg counties.
(B)(1) Licensees in Abbeville, Aiken, Anderson, Calhoun, Edgefield, Greenville, Greenwood, Kershaw, Lee, Orangeburg, and Sumter counties shall obtain a one-year license in 1992. Beginning in 1993 these licensees shall obtain a biennial license.
(2) Licensees in Charleston, Clarendon, Colleton, Dorchester, Georgetown, Hampton, Jasper, Lancaster, Marion, Marlboro, Union, Williamsburg, and York counties whose license expires in 1993 shall obtain a one-year license. Beginning in 1994 these licensees shall obtain a biennial license.
(3) Licensees located in counties not provided in item (1) or (2) whose license expires in 1992 or 1993 shall obtain a biennial license upon their first license renewal or registration after June 30, 1992.
(C) The department shall prorate license fees for license years 1992-94 according to the time the licenses are valid.
Section 61-3-720. In the event of the death of any licensee, except in the case of a license granted to more than one person, the executor or administrator of such deceased licensee may, with the consent of the court of probate and upon permit of the department, continue the operation of the business covered by the license. If such executor or administrator shall elect to discontinue such business or if the department shall not issue a permit for its continuance, the unearned portion of the license tax, computed on the basis of the cost of the license per month for the period for which it was issued, shall be refunded to the executor or administrator, and any alcoholic liquors of the deceased which come into his hands as such executor or administrator may be sold by him in the manner provided in Section 61-3-800.
Section 61-3-730. The department shall refuse to grant any license mentioned in this chapter, Chapter 7, and Article 3 of Chapter 13, if it shall be of the opinion that:
(1) the applicant is not a suitable person to be so licensed;
(2) the store or place of business to be occupied by the applicant is not a suitable place; or
(3) a sufficient number of licenses have already been issued, in the State, incorporated municipality or unincorporated community or other community.
Section 61-3-740. The department may suspend or revoke any license issued by it if it be of the opinion that:
(1) the licensee is not a suitable person to hold such license; or
(2) the store or place of business occupied by the licensee is not a suitable place.
Section 61-3-750. The department shall revoke the license of any wholesaler whenever proof is obtained that such wholesaler has an interest, either directly or indirectly, in any retail store.
Section 61-3-760. Any license to sell intoxicating liquors at retail issued by the department shall be immediately revoked by the department if the licensee therein or any officer of such licensee shall during the effective period of such license be indebted to any wholesaler licensed by the department except an indebtedness for current purchases of alcoholic liquor which are not past due.
Section 61-3-770. Before the department shall refuse to grant any license or shall suspend or revoke any license issued under the provisions of this chapter, Chapter 7, and Article 3 of Chapter 13, at least ten days' notice of such proposed or contemplated action by the department shall be given to the applicant or the licensee affected, as the case may be. The notice shall be in writing and shall contain a statement of the grounds or reason of the proposed or contemplated action of the department and shall be served upon the applicant or licensee in person or by registered mail sent to his last known post-office address. The department shall in such notice appoint a time and place when and at which the applicant or licensee shall be heard as to why the license should not be refused, suspended, or revoked, as the case may be. The applicant or licensee shall at such time and place have the right to produce evidence in his behalf and to be represented by counsel.
Section 61-3-780. The action of the hearing officer and the department in granting or in refusing to grant any license under the provisions of this chapter, Chapter 7, or Article 3 of Chapter 13 is subject to appeal pursuant to Section 61-1-40. This action shall not operate as a supersedeas.
Section 61-3-790. The action of the hearing officer and the department in suspending or revoking any license pursuant to the provisions of this chapter, Chapter 7, and Article 3 of Chapter 13, shall be subject to appeal pursuant to Section 61-1-40, but such appeal shall not operate as a supersedeas to stay such suspension or revocation.
Section 61-3-800. Alcoholic liquors owned by or in possession of any licensee for sale at the time the license of any such licensee is suspended or revoked under this chapter, Chapter 7, or Article 3 of Chapter 13, or is terminated in any other manner may, upon permits issued by the department and within the time fixed therein and upon such conditions as the department may specify, be sold by such licensee to persons in this State licensed under Article 5 of this chapter or may, upon permits issued by the department and within the time fixed therein be sold to persons outside of this State for resale outside of the State, except that no deliveries or shipments shall be made into any state the laws of which prohibit the consignee from receiving or selling such alcoholic liquors. The time fixed by the department in such permits shall in no case be less than sixty days.
Article 9
Regulation of Licenses
Section 61-3-910. No manufacturer shall own or operate more than one plant, establishment or place of business for the manufacture of alcoholic liquors in any one county of this State nor shall he permit the drinking of alcoholic liquors on his premises.
Section 61-3-920. Wholesale and retail liquor dealers are hereby prohibited from selling alcoholic liquors on credit.
Section 61-3-930. No wholesaler shall:
(1) sell, barter, exchange, give, transfer or deliver for consumption any alcoholic liquors to any person not having a retail store dealer's license granted under this chapter, Chapter 7, and Article 3 of Chapter 13; (2) permit the drinking of any alcoholic liquors on his premises;
(3) condition the sale of alcoholic liquors to any retail dealer upon the purchase or receipt of any other kind or brand of alcoholic liquors than that ordered by such retail dealer; or
(4) sell any alcoholic liquors between the times of sundown and sunrise.
Section 61-3-940. No wholesale dealer, directly or indirectly, individually or as a member of a partnership or an association, as a member or stockholder of a corporation or as a relative to any person by blood or marriage within the third degree, shall have any interest whatsoever in any business, store or establishment dealing in alcoholic liquors except the store or place of business covered by his wholesale dealer's license.
Section 61-3-950. Every wholesaler shall, for the purpose of conducting his business under his wholesaler's license, maintain a separate store or warehouse and no other goods, wares or merchandise except nonalcoholic beverages shall be kept or stored therein. No place of amusement shall be maintained within such place or in the same building or in connection therewith.
Section 61-3-960. Every wholesale licensee, upon receipt of a shipment of alcoholic liquors for sale within this State under the provisions of this chapter, Chapter 7, and Article 3 of Chapter 13, shall, within twenty-four hours of the receipt of the shipment and before it is offered for sale, furnish to the department true invoices of the alcoholic liquors so received.
Section 61-3-970. Every wholesaler shall furnish to the department duplicate copies of all invoices for the sale of alcoholic liquors within twenty-four hours after such alcoholic liquors have been removed from the wholesaler's place of business.
Section 61-3-980. Every wholesaler shall file with the department monthly, on or before the first day of each month, a statement showing the stock of alcoholic liquors received by him during the preceding thirty days and such additional reports as the department may require.
Section 61-3-990. No retail dealer shall:
(1) sell, offer for sale, barter, exchange, give, transfer or deliver or permit to be sold, bartered, exchanged, given, transferred or delivered any alcoholic liquors in less quantities than two hundred milliliters;
(2) own or keep in his possession any alcoholic liquors in separate containers containing less than two hundred milliliters;
(3) sell, barter, exchange, give, transfer or deliver, offer for sale, barter or exchange or permit the sale, barter, exchange, gift, transfer or delivery of alcoholic liquors (a) between the hours of 7:00 p.m. and 9:00 a.m., (b) for consumption on the premises, (c) to a person under twenty-one years of age, (d) to any intoxicated person or (e) to any insane person;
(4) permit the drinking of any alcoholic liquors in his store or place of business.
Provided, that during restricted hours the retail dealers are permitted to receive, stock, and inventory merchandise, provide for maintenance and repairs, and other such related functions which may be required that do not involve sale of any alcoholic beverages.
The provisions of this section relating to quantities of less than two hundred milliliters shall not apply to sealed containers of two ounces or less when sales in these quantities are authorized by law to be sold to persons licensed to sell these sealed containers for on-premises consumption.
It is unlawful for any person licensed to sell alcoholic beverages under the provisions of this section to refill a container of two ounces or less and any person who is convicted of doing so shall have his license revoked permanently.
Each retail dealer shall keep a record of all sales of alcoholic beverages sold in sealed containers of two ounces or less. The record shall include the name of the purchaser and the date and quantity of the sale. The reports of sales must be filed with the department within ten days of the end of each quarter. It is unlawful to sell sealed containers of two ounces or less except during legal hours of operation.
Section 61-3-1000. Every retail dealer shall maintain a separate store or place of business with not more than two means of public ingress or egress which must be on the front or the same side of the building except that the doors may be located at the corner of two adjacent sides of the building. One additional door, not in the front, is allowed to be used solely for the receipt of commercial deliveries and as an emergency exit.
Red dots not exceeding thirty-six inches in diameter may be placed on each side of the building and on the rear and front of the building.
A sign, not to exceed thirty-six inches in diameter, may be attached to the front of the building or may be suspended from the front of the building. The words `ABC Package Store', the owner's name, and license number may appear on the sign. Letters must be white with a red background. Letters must be no more than six inches high and no more than four inches wide. Retail dealers may attach to their stores one additional sign not exceeding the dimensions of ten feet by four feet. This sign may only be white and may only contain the words `ABC Package Store' in black letters. No other letters or symbols may be placed on this sign.
Retail dealers may place signs containing the words `ABC Package Store' in shopping center directories as long as the signs are the same size as those listing other stores in the directory.
Retail dealers may place one sign, not to exceed three feet by three feet, off of their licensed premises. This sign may only be white, and may only contain the words `ABC Package Store' in black letters. This sign may also contain a red dot and a black arrow showing the direction to the package store. No other words or symbols may be placed on this sign.
A retail dealer may place a reasonable number of signs on his licensed premises indicating the designated parking for his licensed premises. In no case may the number of signs be more than the number of parking spaces. These signs may only be white and may only contain the words `ABC Package Store Parking' in black letters. No other letters or symbols may be placed on the signs. The signs may be painted on the pavement with letters not exceeding six inches in height and four inches in width or may be placed as a vertical sign which may not exceed six inches in height and twenty inches in length. The top of each vertical sign may not be more than twenty inches from the ground. A retail dealer may have only one type of sign per parking space.
Signs by retail liquor dealers other than those specifically authorized by this section are prohibited, and retail dealers may not display signs other than those authorized by this section that are visible from outside their places of business, except signs which indicate the hours of operation of the business or whether the business is open or closed. A retail liquor dealer may have no more than two signs to indicate the hours of operation of the business and no more than two signs to indicate whether the business is open or closed. These signs must be on the licensed premises and may not exceed twelve inches in height and sixteen inches in width. Letters on the signs must be white with a red or black background, red with a white or black background, or black with a red or white background.
Section 61-3-1010. Every retail dealer shall display all retail prices on the shelf under each brand and bottle size. No bottles of alcoholic liquors or no packages containing alcoholic liquors may be displayed in the front or windows of the store or place of business of a retail dealer. However, a retailer may display signs within the store or place of business with the price and bottle size in letters of any size. These signs must not be visible from outside the store or place of business.
Section 61-3-1020. Subject to Section 61-3-1030, no other goods, wares, or merchandise may be kept or stored in or sold in or from a retail alcoholic liquor store or place of business, and no place of amusement may be maintained in or in connection with the store. However, retail dealers may sell drinking glassware packaged together with alcoholic liquors if the glassware and alcoholic liquors are packaged together by the wholesaler or producer in packaging provided by the producer. Retail dealers also may sell nonalcoholic beverages, other than beer or wine, packaged together with alcoholic liquors if the nonalcoholic beverages and alcoholic liquors are in sealed packages and are packaged together by the alcoholic liquor producer.
Section 61-3-1030. Notwithstanding the provisions of Section 61-3-1020, retail dealers licensed under the provisions of this chapter, Chapter 7, and Article 3 of Chapter 13, may sell all wines in the stores or places of business covered by their respective licenses, whether declared alcoholic or nonalcoholic or nonintoxicating by the laws of this State. Wines containing more than fourteen percent of alcohol by volume shall be sold only in licensed alcoholic liquor stores or in establishments licensed to sell and permit consumption of alcoholic liquors in sealed containers of two ounces or less. The provisions of this section shall not be construed to amend, alter, or modify the taxes imposed on wines or the collection and enforcement thereof.
Section 61-3-1040. The restrictive provisions of this article relating to retail dealers shall not apply to sales of alcoholic liquors by railroad, Pullman or airline companies to passengers on interstate trains or aircraft for consumption thereon, such sales being hereby permitted."
Authority to regulate devolved on Department of Revenue and Taxation
SECTION 1584. Chapter 5, Title 61 of the 1976 Code is amended to read:
"CHAPTER 5
Regulation of Transportation, Possession,
Consumption and Sale of Alcoholic Beverages
Article 1
General Provisions
Section 61-5-10. As used in this article:
(1) `Bona fide engaged primarily and substantially in the preparation and serving of meals' shall refer only to such a business which has been issued a Class A restaurant license prior to issuance of license under this article and in addition provides facilities for seating not less than forty persons simultaneously at tables for the service of meals.
(2) `Furnishing lodging' shall refer only to those businesses which rent accommodations for lodging to the public on a regular basis consisting of not less than twenty rooms.
Section 61-5-20. Notwithstanding any other provision of law, it shall be lawful, subject to the provisions of Section 61-5-30, for any person who is twenty-one years of age or older to transport, possess, or consume lawfully acquired alcoholic liquors in accordance with the following:
(1) Any person may transport alcoholic liquors to and from any place where alcoholic liquors may be lawfully possessed or consumed; but if the cap or seal on the container has been opened or broken, it shall be unlawful to transport such liquors in any motor vehicle, except in the luggage compartment or cargo area.
(2) Any person may possess or consume alcoholic liquors:
(a) in a private residence, hotel room or motel room;
(b) or on any other property not engaged in any business or commercial activity, at private gatherings, receptions, or occasions of a single and isolated nature, and not on any repetitive or continuous basis, with the express permission of the owner and any other person in possession of such property, and to which the general public is not invited; provided, however, this shall not be construed to permit or in any way authorize the possession or consumption of alcoholic liquors on premises open to the general public for which a license has been obtained pursuant to subsections (3) and (4) of this section.
(c) In separate and private areas of an establishment whether or not such establishment includes premises which are licensed pursuant to subsections (3) and (4) of this section, where specific individuals have leased such areas for a function not open to the general public.
(3) Nonprofit organizations with limited membership, not open to the general public, established for social, benevolent, patriotic, recreational, or fraternal purposes may be licensed to sell alcoholic liquors and beverages in sealed containers of two ounces or less. Members or guests of members of such organizations may consume alcoholic liquors and beverages sold in such containers upon the premises between the hours of ten o'clock in the morning and two o'clock on the following morning.
(4) Except on Sunday, it shall be lawful to sell and consume alcoholic liquors and beverages sold in sealed containers of two ounces or less in any business establishment between the hours of ten o'clock in the morning and two o'clock the following morning, provided the establishment meets the following requirements:
(a) the business is bona fide engaged primarily and substantially in the preparation and serving of meals or furnishing of lodging; and
(b) the business has a license from the department permitting the sale and consumption of alcoholic liquors and beverages, which is conspicuously displayed on the main entrance to the premises and clearly visible from the outside.
(5) Provided, that the purchaser shall break the seal unless the seller shall break the seal in the presence of the purchaser and deliver the container.
(6) No person shall serve or deliver to a purchaser any alcoholic liquors in sealed containers in a business where such sales are authorized unless such person has attained the age of eighteen years; nothing contained herein shall be construed as allowing bartenders under the age of twenty-one.
Section 61-5-25. Any restaurant with a Class A or B license issued by the Department of Health and Environmental Control (department) may serve food or beverages at its adjoining facilities located outside the restaurant if the food is prepared in a kitchen of the restaurant which is subject to inspection by the department and is placed on individual plates or in individual serving dishes inside the restaurant and if any uncovered containers in which the beverages are served are filled only to satisfy the order of a customer.
This bill shall not allow a Class B Restaurant to sell, dispense, barter or trade in minibottles in any form or fashion.
The existing law controlling Class B Restaurants in reference to the sale or dispensing of alcoholic beverages shall not be affected in any manner.
Notwithstanding any other provisions of this section, the licensed premises of a business establishment which is bona fide engaged primarily and substantially in the preparation and service of meals and which holds a valid license for the sale and consumption of alcoholic beverages in sealed containers of two (2) ounces or less shall not extend to any portion of the business establishment or the property upon which it is located which is designed as or used for a parking area or a deck to a swimming pool even though food may be served in such area.
Section 61-5-30. It shall be unlawful for any person to possess or consume any alcoholic liquors upon any premises where such person has been forbidden to possess or consume alcoholic liquors by the owner, operator, or person in charge of the premises.
No person or establishment licensed to sell alcoholic beverages pursuant to this article shall sell such beverages to persons in an intoxicated condition and such sales shall be deemed violations of the provisions thereof and subject to the penalties contained herein.
No person, corporation or organization for whose premises a license is required shall knowingly allow the possession or consumption of any alcoholic liquors upon such premises unless a valid license issued pursuant to subsection (3) or (4) of Section 61-5-20 has been obtained and is properly displayed.
Section 61-5-40. Any person making application for a license under subsections (3) and (4) of Section 61-5-20 shall submit his application to the department. The department shall have the exclusive authority in issuing any license, or in renewing, suspending or revoking any license, pursuant to the provisions of this article.
Section 61-5-50. The department may grant a license upon finding:
(1) The applicant is a bona fide nonprofit organization or the applicant conducts a business bona fide engaged primarily and substantially in the preparation and serving of meals or furnishing of lodging, as described in Section 61-5-10.
(2) The applicant, if an individual, is of good moral character or, if a corporation or association, has a reputation for peace and good order in its community, and its principals are of good moral character.
(3) As to business establishments or locations established after November 7, 1962, Section 61-3-440 has been complied with.
(4) Notice of application has appeared at least once a week for three consecutive weeks in a newspaper most likely to give notice to interested citizens of the county, municipality, or community in which the applicant proposes to engage in business. The department shall determine which newspapers meet the requirements of this section based on available circulation figures. However, if a newspaper is published within the county and historically has been the newspaper where the advertisements are published, the advertisements published in that newspaper meet the requirements of this section. Applicants for a beer or wine permit and an alcoholic liquor license may use the same advertisement for both if it is approved by the department.
(5) Notice has been given by displaying a sign for fifteen days at the site of the proposed business. The sign must:
(a) state the type of license sought;
(b) tell an interested person where to protest the application;
(c) be in bold type;
(d) cover a space at least eleven inches wide and eight and one-half inches high;
(e) be posted and removed by an agent of the department.
Section 61-5-55. Notwithstanding any other provision of law, any person or organization licensed by the department may hold and advertise special events such as bingo, raffles, and other similar activities intended to raise money for charitable purposes. This section shall not affect any requirements for obtaining a bingo license from the department.
Section 61-5-60. The department may suspend, revoke, or refuse to renew a license upon finding that:
(a) the applicant no longer meets the requirements of Section 61-5-50, or
(b) the applicant has violated since the issuance of the license any of the regulations promulgated by the department or the division, or
(c) the applicant has violated since the issuance of the license any other provisions of the Alcoholic Beverage Control Act, as amended , or
(d) the applicant permits entertainment on the licensed premises where a person is in a state of undress so as to expose the human male or female genitals, pubic area, or buttocks cavity with less than a full opaque covering.
Upon the written request of any person who resides in the county where the license is requested to be granted, the department shall not issue such license until any interested person has been given an opportunity to be heard. No person who has been convicted of a felony shall be granted a license within ten years of such conviction.
Section 61-5-70. (A) Licenses issued under this article expire biennially according to the county where the licensed location is situated. The expiration dates are the last day of:
(1) February in years which end in an:
(a) odd number for Allendale, Bamberg, Barnwell, Beaufort, and Berkeley counties;
(b) even number for Charleston, Clarendon, Colleton, Dorchester, Georgetown, Hampton, Jasper, and Williamsburg counties;
(2) May in years which end in an:
(a) odd number for Cherokee, Chester, Chesterfield, Darlington, Dillon, Fairfield, Florence, and Horry counties;
(b) even number for Lancaster, Marion, Marlboro, Union, and York counties;
(3) August in years which end in an:
(a) odd number for Calhoun, Kershaw, Lee, Orangeburg, and Sumter counties;
(b) even number for Richland County;
(4) November in years which end in an:
(a) odd number for Abbeville, Aiken, Anderson, Edgefield, Greenville, and Greenwood counties;
(b) even number for Laurens, Lexington, McCormick, Newberry, Oconee, Pickens, Saluda, and Spartanburg counties.
(B)(1) Licensees in Abbeville, Aiken, Anderson, Calhoun, Edgefield, Greenville, Greenwood, Kershaw, Lee, Orangeburg, and Sumter counties shall obtain a one-year license in 1992. Beginning in 1993 these licensees shall obtain a biennial license.
(2) Licensees in Charleston, Clarendon, Colleton, Dorchester, Georgetown, Hampton, Jasper, Lancaster, Marion, Marlboro, Union, Williamsburg, and York counties whose license expires in 1993 shall obtain a one-year license. Beginning in 1994 these licensees shall obtain a biennial license.
(3) Licensees in counties not provided in item (1) or (2) whose license expires in 1992 or 1993 shall obtain a biennial license upon their first license renewal or registration after June 30, 1992.
(C) The department shall prorate license fees for license years 1992-94 according to the time the license is valid.
Section 61-5-80. (A) Applications for licenses must be accompanied by appropriate fees payable to the department and must be deposited with the State Treasurer, or are refundable if a license is refused. The schedule of fees for the license is:
(1) one thousand, five hundred dollars biennially for a nonprofit organization, as defined in Section 61-5-20(3);
(2) one thousand, five hundred dollars biennially for a business establishment, as defined in Section 61-5-20(4).
(B) A person who initially applies for a license after the first day of a license period shall pay license fees in accordance with the schedule provided in this subsection. During the:
(1) first quarter of the license period: the entire fee;
(2) second quarter of the license period: three-fourths of the prescribed fee;
(3) third quarter of the license period: one-half of the prescribed fee;
(4) final quarter of the license year: one-fourth of the prescribed fee.
(C) Each applicant shall pay a filing fee of one hundred dollars which must accompany the initial application for each location and is not refundable.
Section 61-5-85. In addition to the licenses authorized under Section 61-5-80, the department may also issue a temporary license for a period not to exceed twenty-four hours to organizations not organized for profit which will permit such organizations to purchase and sell at a single social occasion alcoholic liquors in sealed containers of two ounces or less. Notwithstanding other provisions of this chapter, the issuance of such permit shall authorize the organization to which such permit is issued to purchase alcoholic liquors in sealed containers of two ounces or less from licensed liquor dealers in the same manner that persons licensed under Section 61-5-80 are authorized to make such purchases. The fee for such permit shall be thirty-five dollars payable at the time of application. The permit application shall include a statement by the applicant as to the amount of alcoholic liquors to be purchased and the nature and date of the social occasion at which they shall be sold. The issuance or nonissuance of permits authorized under this section shall be within the sole discretion of the department.
Section 61-5-90. Before the department shall refuse to grant any license or shall suspend or revoke any license issued under the provisions of this article, at least ten days' notice of such proposed or contemplated action by the department shall be given to the applicant or the licensee affected, as the case may be. The notice shall be in writing and shall contain a statement of the grounds or reason of the proposed or contemplated action of the department and shall be served upon the applicant or licensee in person or by certified mail sent to his last known post-office address. The department shall in such notice appoint a time and place when and at which the applicant or licensee may appear and be heard as to why the license should not be refused, suspended, or revoked, as the case may be. The applicant or licensee shall at such time and place have the right to produce evidence in his behalf and to be represented by counsel.
The action of the hearing officer or the department in granting or in refusing to grant any license under the provisions of this article shall be subject to appeal pursuant to Section 61-1-40. This action shall not operate as a supersedeas.
Section 61-5-100. All alcoholic liquors found in the possession, custody or within the control of any person, corporation, or organization, which are handled, stored, kept, possessed, transported, used, or distributed in violation of any of the provisions of Chapter 3, Chapter 7, and Article 3 of Chapter 13, or in violation of any of the provisions of this article, or with the design of avoiding payment of any license taxes provided in Chapter 33 of Title 12, are hereby declared to be contraband and may be seized and confiscated without a warrant by the division, its respective agents, or any peace officer, and shall be disposed of in accordance with Section 61-13-570.
Section 61-5-110. Any person who transports, possesses or consumes alcoholic liquors except in a manner permitted by this article and any person who violates any of the provisions thereof shall be guilty of a misdemeanor and, upon conviction, shall be fined not more than one hundred dollars or be imprisoned for not more than thirty days. In addition any person who is licensed to sell alcoholic liquors pursuant to the provisions of this article who has in his possession on his licensed premises any alcoholic beverages in containers other than sealed containers of two ounces or less, except wine as authorized for sale under Section 61-3-1030, or who displays such sealed containers when the seals are broken or who violates any other provisions of this article shall:
(1) for a first offense be fined not less than two hundred dollars nor more than five hundred dollars or have his license suspended for not more than thirty days, or both;
(2) for a second offense within three years of the first offense be fined not less than two hundred dollars nor more than five hundred dollars or have his license suspended for not more than one hundred eighty days, or both;
(3) for a third offense within three years of the first offense be fined not less than five hundred dollars and have his license revoked permanently;
(4) for any violation involving the avoidance of taxes, a fine of not less than one thousand dollars and permanent revocation of his license.
Section 61-5-120. Any person, corporation, or organization who has in their possession, custody, or within their control alcoholic liquors which are handled, stored, kept, possessed, transported, used or distributed in violation of any of the provisions of Chapter 3, Chapter 7, and Article 3 of Chapter 13, or in violation of the provisions of this article or with the design of avoiding payment of any license taxes provided in Chapter 33 of Title 12, or any other taxes shall be required to pay a penalty of twenty dollars per container to be assessed by the department as other taxes are collected. The department may, upon good cause shown, remit any penalties provided in this section, in whole or in part.
Section 61-5-130. Notwithstanding any other provision of law to the contrary, alcoholic liquors and beverages sold in sealed containers of two ounces or less shall be taxed at the rate of twenty-five cents per container in addition to the case tax as prescribed in Article 5, Chapter 33, Title 12 and collected as those taxes are collected. Taxes levied in Article 3 of that chapter shall not apply.
Alcoholic beverages in sealed containers of two ounces or less as authorized to be sold in this article shall be purchased only by a person licensed under this article, in case lots and only from licensed liquor retailers. Any retailer who sells such beverages in such containers to other than a person licensed under this article shall be deemed guilty of a misdemeanor and upon conviction be fined not more than one thousand dollars and be subject to suspension or revocation of his retail license at the discretion of the department. As used in this paragraph a person licensed under this article shall include his designated agent as a purchaser. No person licensed under the provisions of subsections (3) and (4) of Section 61-5-20 shall be licensed as a retail liquor dealer on the same premises.
Section 61-5-140. The division shall employ such additional enforcement personnel as required to adequately enforce the provisions of this article.
Section 61-5-160. Each retail liquor dealer shall have posted in his place of business a sign with the following words printed thereon: `Any person may transport alcoholic liquors to and from any place where alcoholic liquors may be lawfully possessed or consumed; but if the cap or seal on the container has been opened or broken, it shall be unlawful to transport such liquors in any motor vehicle, except in the luggage compartment or cargo area'. The size of the lettering and approved locations on the dealer's premises shall be provided for by rules and regulations of the department.
Section 61-5-170. In addition to the provisions of Section 61-5-85, the department may issue a temporary permit to allow the possession, sale, and consumption of alcoholic liquor and beverages. This permit is valid for a period not to exceed twenty-four hours, and may be issued only to bona fide nonprofit organizations that have been in existence and operating for at least twelve months prior to the date of application, to nonprofit educational foundations, and to political parties and their affiliates duly certified by the Secretary of State. The department shall charge a nonrefundable filing fee of thirty-five dollars for processing each application. The department in its sole discretion shall specify the terms and conditions of the permit.
Section 61-5-180. In addition to the provisions of Section 61-5-85, the department may issue a temporary permit to allow the possession, sale, and consumption of alcoholic liquors in sealed containers of two ounces or less. This permit is valid for a period not to exceed twenty-four hours and may be issued only to bona fide nonprofit organizations and business establishments otherwise authorized to be licensed for sales. The department shall charge a nonrefundable filing fee of one hundred dollars for processing each application and a daily permit fee of fifty dollars for each day for which a permit is approved. An application must be filed for each permit requested. The permit fees must be credited to the general fund of the State. The department in its sole discretion shall specify the terms and conditions of the permit.
Permits authorized by this section may be issued only in those counties or municipalities where a majority of the qualified electors voting in a referendum vote in favor of the issuance of the permits. The county or municipal election commission, as the case may be, shall conduct a referendum upon petition of at least ten percent but not more than twenty-five hundred qualified electors of the county or municipality, as the case may be, in not less than thirty nor more than forty days after receiving the petition. The election commission shall cause a notice to be published in a newspaper circulated in the county or municipality, as the case may be, at least seven days before the referendum. The state election laws shall apply to the referendum mutatis mutandis. The election commission shall publish the results of the referendum and certify them to the South Carolina Department of Revenue and Taxation. The question on the ballot shall read substantially as follows:
`Shall the South Carolina Department of Revenue and Taxation be authorized to issue temporary permits in this (county)(municipality) for a period not to exceed twenty-four hours to allow the possession, sale, and consumption of alcoholic liquors in sealed containers of two ounces or less to bona fide nonprofit organizations and business establishments otherwise authorized to be licensed for sales'?
A referendum for this purpose may not be held more often than once in forty-eight months.
The expenses of any such referendum must be paid by the county or municipality conducting the referendum.
Section 61-5-190. The department is the sole and exclusive authority empowered to regulate the operation of all retail locations authorized to sell beer, wine, or alcoholic beverages and is authorized to establish such conditions or restrictions which the department in its discretion considers necessary before issuing or renewing any license or permit.
Nothing contained in this section may be considered as preventing judicial appeals from decisions of the South Carolina Alcoholic Beverage Control Hearing Officer or the department, as authorized by Section 61-1-40, nor as limiting in any way the authority of the courts in interpreting and applying the laws of this State relating to matters administered by the department.
Section 61-5-200. The department may not generate any license fees to be deposited in the state general fund through the issuance of licenses or permits for on or off premises consumption which authorize alcoholic liquor, beer, or wine to be sold on a drive-through or curb service basis.
Article 3
Disbursement of Revenue
Section 61-5-310. Revenue allocated to counties for educational purposes relating to the use of alcoholic liquors and the rehabilitation of alcoholics, drug abusers, and drug addicts pursuant to Article 1 of this chapter shall be regulated and disbursed in accordance with the provisions of this article.
Section 61-5-320. Prior to the use of the revenue described in Section 61-5-310, the governing body of each county shall:
(a) designate a single existing county agency or organization, either public or private, as the sole agency in the county for alcohol and drug abuse planning for programs funded by revenues allocated pursuant to Article 1 of this chapter or create a new agency for that purpose;
(b) develop a county plan in accordance with the state plan for alcohol abuse and alcoholism and the state plan for drug abuse required by Public Laws 91-616 and 92-255 for the prevention and control of alcohol and drug abuse and obtain written approval of such plan by the South Carolina Commission on Alcoholism and the Commissioner of Narcotics and Controlled Substances. Such written approval shall be granted by the South Carolina Commission on Alcoholism and by the Commissioner of Narcotics and Controlled Substances if reasonable. In the event approval is denied, an appeal to the Governor shall lie. Such appeal shall fully state the reasons why it is made. Should the Governor deem nonapproval of the plan by the South Carolina Commission on Alcoholism and the Commissioner of Narcotics and Controlled Substances to be unreasonable, he shall communicate his reasons to the Commission on Alcoholism and the Commissioner of Narcotics and Controlled Substances and require them to reexamine such plan in light of his objections. Following such reexamination, no further appeal shall lie.
Section 61-5-330. The single county agency, as provided for in Section 61-5-320, shall provide for citizen participation and consumer input in the development and implementation of the county alcohol and drug abuse plan through an existing board or advisory committee or, where none exists or where citizen participation is nonexistent, through the establishment of a county advisory committee, which shall consult with and advise the single county agency in the development and implementation of the county plan.
Section 61-5-340. Revenue funds allocated pursuant to Section 61-5-150 shall be collected and disbursed by the Department of Revenue and Taxation in the manner and in accordance with schedule of disbursement of other alcoholic beverage tax monies on a per capita basis according to the latest official United States census. Such revenue funds shall actually be disbursed to the counties but shall not be used until their alcohol and drug abuse plans have been approved. If such funds have not been expended within two years from receipt by the county treasurer such funds shall be returned to the general fund of the State to be disbursed on a per capita basis to the counties which have approved plans.
Section 61-5-350. Revenue funds received in accordance with this article will be expended only for activities and services which are called for in, and are consistent with, the recommendations of the approved county alcohol and drug abuse plan.
Section 61-5-360. Each county governing body shall: (a) establish such methods of administration as are necessary for the proper and efficient operation of the programs and services or projects, including the provision of annual reports of progress toward implementing county plans to the South Carolina Commission on Alcohol and Drug Abuse;
(b) provide for such accounting procedures as may be necessary to assure proper disbursement of and accounting for such funds, including an annual audit of fiscal records, a copy of which shall be furnished to the South Carolina Commission on Alcohol and Drug Abuse.
Section 61-5-370. The provisions of this article shall not be construed as preventing two or more counties from joining together in plans, programs and projects or in designating a single agency to administer multicounty plans required by item (b) of Section 61-5-320.
Section 61-5-380. Funds disbursed pursuant to the provisions of Article 1 of this chapter and this article shall be used only to supplement and increase the level of federal, state, local and other funding that would in the absence of these funds be made available, and will in no event be used to supplant federal, state, local, and other funds."
Authority to regulate devolved on Department of Revenue and Taxation
SECTION 1585. Chapter 7, Title 61 of the 1976 Code is amended to read:
"CHAPTER 7
Importation of Alcoholic Beverages
Section 61-7-10. (1) The word `producer' as used in Chapter 3, this chapter and Article 3 of Chapter 13, shall mean a manufacturer, distiller, rectifier, blender, or bottler of alcoholic liquors and shall include an importer of alcoholic liquors engaged in importing such alcoholic liquors into the United States.
(2) `Registered producer' shall mean a producer as herein defined who is registered with the department pursuant to this chapter.
(3) `Producer representative' shall mean a person who is a bona fide citizen of South Carolina and who maintains his principal place of abode in this State and who is registered with the department pursuant to this chapter as the South Carolina representative of a registered producer.
Section 61-7-20. The provisions of this chapter shall be applicable notwithstanding any other provision of law.
Section 61-7-30. The department shall administer the provisions of this chapter and the division shall enforce the provisions of this chapter.
Section 61-7-40. The department and the division shall have the power to make such rules and regulations not inconsistent with law deemed necessary for the proper administration and enforcement of this chapter. Such rules and regulations shall have the full force and effect of law.
Section 61-7-50. Any manufacturer licensed under the provisions of Chapter 3, this chapter and Article 3 of Chapter 13, shall be exempt from the provisions of this chapter.
Section 61-7-60. No person other than a registered producer shall ship or move, or cause to be shipped or moved, any alcoholic liquors from a point outside South Carolina to a point within the geographic limits of South Carolina, and then only in accordance with the provisions of this chapter. No brand may be registered by the producer unless the person registering the brand is either the American producer or the primary American source of supply in the United States of such brand as herein defined, and it shall be unlawful for any wholesaler in this State to order, purchase, or receive any alcoholic beverages from any producer who is not the primary American source of supply for the brand ordered, purchased or received. The term primary American source of supply means the manufacturer, distiller, vintner, winery, or owner of vinous or spirituous beverages at the time same becomes a marketable product, or bottler, or the exclusive agent of any such person, who, if the product cannot be secured directly from the manufacturer by an American distributor, is the source closest to the manufacturer in the channel of commerce from whom the product can be secured by an American distributor, or who, if the product can be secured directly from the manufacturer by an American distributor, is the manufacturer.
Section 61-7-70. No alcoholic liquors shall be shipped or moved into South Carolina unless and until each brand of such alcoholic liquors is duly registered with the department in accordance with the provisions of this chapter and regulations of the department promulgated thereunder.
Section 61-7-80. (A) Every producer shall apply to the department on forms the department prescribes for a certificate of registration, which certificate must be approved and issued before the shipment of alcoholic liquors by the producer to a point within the geographic limits of South Carolina.
(B) Every producer, at the same time application is made for a certificate of registration, shall remit to the department a fee of two hundred dollars. Where a certificate is applied for on or after March first, the fee is one hundred fifty dollars.
(C) Every certificate of registration is valid from the date of issue until the second August thirty-first after the issuance of the license.
Section 61-7-90. (A) Every registered producer, before the shipment of alcoholic liquors to a point within the geographic limits of South Carolina, shall obtain from the department a certificate of registration for each brand of alcoholic liquors intended to be shipped to a point within the geographic limits of this State. The department shall provide appropriate forms for application for certificate of registration of brands of alcoholic liquors.
(B) When an application for a certificate of registration of brands of alcoholic liquors is submitted a fee of twenty dollars must be paid to the department for each brand except the first five brands of a registered producer.
(C) A certificate of registration of brands of alcoholic liquors is valid from the date of issue to the second August thirty-first after the issuance of the license.
Section 61-7-100. Every registered producer of alcoholic liquors shall, at the time of application for registration in this State, file with the department an affirmation of corporate policy with regard to sales of all brands owned, controlled, sold, offered for sale, franchised or distributed by such producer in this State. The affirmation shall certify that the producer shall not wilfully sell or offer for sale any alcoholic liquors of a particular brand and proof in any state in the United States at a price lower than the price such liquors are sold or offered for sale to licensed South Carolina wholesalers.
`Price' as used in this section shall mean platform price at the distillery and shall not include price differentials based on transportation costs, containers or other costs not directly related to the quality and proof of the product concerned. Quantity discount prices for liquors sold to monopoly states or elsewhere shall not be considered to be violations of the producer's affirmation if such discount prices are also offered to South Carolina wholesalers for purchases in the same quantities.
Any registered producer who fails to file such affirmation or wilfully violates the pledges contained therein shall have its registration and privileges to import and sell alcoholic liquors in the State refused, canceled, or suspended at the discretion of the department for such periods as the department may deem necessary and proper.
Any producer may appeal a judgment of the Alcoholic Beverage Control Hearing Officer and the department pursuant to Section 61-1-40.
Section 61-7-110. No person is qualified as a producer representative unless and until he has made application to the department for a certificate of registration and the certificate has been approved and issued. The department shall provide appropriate forms for application for a certificate of registration as a producer representative.
Upon submission of an application for a certificate of registration as a producer representative, a fee of fifty dollars must be paid to the department and is valid for a biennial period.
Section 61-7-120. No person having a direct or indirect interest in a wholesale or retail liquor business in South Carolina may qualify as a producer representative.
Section 61-7-130. (A) A registered producer may store alcoholic liquors only in a warehouse of the registered producer licensed by the department. The department shall require sufficient bond with respect to a licensed warehouse to ensure proper handling of liquors stored in the warehouse. Application for license to operate a warehouse must be filed on forms prescribed by the department.
(B) When an application for a warehouse license is submitted, a fee of four hundred dollars must be paid to the department. Where application is made for a warehouse license on or after March first, the fee is one hundred fifty dollars. A warehouse license is valid from the date of issue until the second August thirty-first after the issuance of the license.
Section 61-7-140. Alcoholic liquors shall be shipped or moved from a point without South Carolina to a point within the geographic limits of South Carolina only by railroad companies, steamship companies, express companies, or truck companies authorized to do business in South Carolina as common carriers by the South Carolina Public Service Commission, by wholesalers licensed by the South Carolina Department of Revenue and Taxation or by producers registered by such department in their own trucks. Such alcoholic liquors shall be shipped or moved only to the registered producer in care of the producer representative who is registered to handle the property of the registered producer originating the shipment. The shipment of alcoholic liquors shall be either stored in a duly licensed warehouse of the registered producer or, after delivery to the producer's representative is complete, may then be shipped by common carriers aforementioned, by wholesalers licensed by the South Carolina Department of Revenue and Taxation or by producers registered by such department in their own trucks to a duly licensed wholesaler. Shipments of alcoholic liquors from a licensed producer's warehouse to a licensed South Carolina wholesaler may be made in a vehicle owned or operated by the wholesaler. Should alcoholic liquors be stored in the warehouse of a registered producer, or after delivery to the producer's representative is complete, they may be shipped to a duly licensed wholesaler or to a point without South Carolina. Prior to any such shipment or transfer, the producer's representative shall apply to the Department of Revenue and Taxation, on forms prescribed by the department, for permission to ship or transfer such alcoholic liquors, and the producer's representative shall have received a certificate of approval of such shipment or transfer.
Section 61-7-150. Prior to shipment into the geographic boundaries of South Carolina, the registered producer shall mail to the department by first-class mail a correct and complete invoice, showing in detail the items in such shipment by quantity, type, brand, size, price, and the point of origin, and the point of destination. Also prior to or at the time of shipment, a copy of the bill of lading shall be forwarded to the department by first-class mail.
Immediately upon acceptance of delivery of the shipment by the producer's representative, the producer's representative shall furnish the department with a copy of the invoice covering the shipment with endorsement thereon showing the date, time, and place delivery was accepted.
Section 61-7-160. Prior to shipment to any South Carolina wholesaler or to any point without the State of South Carolina, the producer's representative shall mail to the department a correct and complete copy of the invoice covering the shipment, showing the name and address of the consignee and, in detail, the items in such shipment by quantity, type, brand, size, and price. On all shipments to a point without South Carolina, the producer's representative shall at the time of shipment mail to the department a copy of the bill of lading.
Section 61-7-170. Any alcoholic liquors shipped or moved into the geographic limits of South Carolina in violation of any provision of this chapter, are hereby declared contraband and may be seized and sold as provided by Section 61-13-570.
Section 61-7-180. The department, in its discretion, upon due consideration of the information contained in applications for certificates and licenses provided for in this chapter, shall issue or reject the certificate or license applied for.
Section 61-7-190. Any and all certificates of registration or licenses provided by this chapter may be suspended or revoked by the department upon a showing of any violation of law or of any regulation of the department or the division.
Section 61-7-200. In all cases the applicant for a certificate or license required by this chapter, as a condition precedent to the issue of such certificate or license, must certify that the department and the division shall have the right within statutory limitations to audit and examine the books and records, papers and memoranda of the applicant, with respect to the administration and enforcement of laws administered by the department and the division.
Section 61-7-210. All monies received by the department under the provisions of this chapter shall be deposited with the State Treasurer to the credit of the general fund of the State.
Section 61-7-300. (A) All alcoholic liquors purchased by military establishments located in the State shall be purchased from wholesalers licensed in this State to sell such liquors. Purchase orders from the military establishment shall be furnished to a licensed wholesaler and the order shall be processed and delivered by the wholesaler as nonmilitary orders are processed and delivered except that delivery shall be made to the military establishment rather than to a licensed retailer.
(B) Alcoholic liquors sold to the military establishment shall be tax free except for the case tax imposed under Sections 12-33-410 and 12-33-420, which tax shall be absorbed by the wholesaler and not passed on to the purchaser.
(C) The department and the division may promulgate regulations necessary to implement the provisions of this section.
(D) Any registered producer who sells alcoholic beverages in violation of this section shall have its certificate of registration, as provided for in Section 61-7-80, suspended for such period as the department shall determine.
Section 61-7-305. It is unlawful for a wholesale or retail dealer to redeem proof-of-purchase certificates for any promotional item. However, this subsection does not preclude a producer from redeeming by mail proof-of-purchase certificates for nonalcoholic promotional items."
Authority to regulate devolved on Department of Revenue and Taxation
SECTION 1586. Chapter 9, Title 61 of the 1976 Code is amended to read:
"CHAPTER 9
Beer, Ale, Porter and Wine
Article 1
General Provisions
Section 61-9-10. All beers, ales, porter and other similar malt or fermented beverages containing not in excess of five per cent of alcohol by weight and all wines containing not in excess of twenty-one per cent of alcohol by volume are hereby declared to be nonalcoholic and nonintoxicating beverages.
Section 61-9-20. It shall be unlawful for any person to sell or permit to be sold any beer, ale, porter, wine, malt, or other beverage authorized to be sold under this chapter on which the tax levied be not paid. Any person having charge of the sale of any such beverage who shall sell or permit it to be sold in violation of the provisions of this section shall be guilty of a misdemeanor and shall be fined for each offense not less than twenty-five dollars nor more than one hundred dollars or imprisoned for a period of not less than ten days nor more than thirty days in the discretion of the court.
Section 61-9-30. All beer or wine sold by wholesalers to the holders of retail licenses in this State shall be sold for cash only at the time of delivery or prior thereto. Cash shall mean money or a bona fide check or money order. Any holder of a retail permit who issues a check in payment for beer or wine with insufficient funds at the bank to cover it shall have violated the provision of this section. This provision for cash payment shall apply to cash deposits on empties when beer is delivered in returnable containers. This deposit shall be not less than the charge from the brewery to the wholesaler and in no event less than sixty cents per case of twenty-four twelve-ounce bottles or twelve one-quart bottles.
Section 61-9-40. (A) It is unlawful for any person to sell beer, ale, porter, wine, or any other similar malt or fermented beverage to a person under twenty years of age and effective September 14, 1986, under twenty-one years of age. Any person making such unlawful sale must be, upon conviction, fined not less than one hundred dollars nor more than two hundred dollars or imprisoned not less than thirty days nor more than sixty days, or both, in the discretion of the court.
(B) Failure of any person to require identification to verify a person's age is prima facie evidence of the violation of this section.
Section 61-9-50. It shall be unlawful for any person to whom beer or wine cannot be lawfully sold to knowingly give false information concerning his age for the purpose of purchasing beer or wine.
Section 61-9-60. It shall be unlawful for any person to purchase beer or wine while on licensed premises and to give such beer or wine to a person to whom beer or wine cannot lawfully be sold, for consumption on such premises.
Section 61-9-70. Any person violating the provisions of Sections 61-9-50 and 61-9-60 shall, upon conviction, be fined not less than fifty nor more than one hundred dollars or be imprisoned for not more than thirty days.
Section 61-9-85. If a person is charged with a violation of Section 61-9-40 (the unlawful sale of beer or wine to minors), the minor shall also be charged with a violation of Section 20-7-370 (unlawful purchase or possession of beer or wine). In addition, if the minor violated Section 61-9-50 (false information as to age) or if an adult violated Section 61-9-60 (unlawful purchase of beer or wine for a person who cannot lawfully buy), these persons shall also be charged with their violations.
Unless the provisions of this section are followed, no person charged with a violation of Section 61-9-40 shall be convicted of such offense.
Nothing herein contained shall require that charges, once made pursuant to this section, be prosecuted to conclusion, but rather this determination shall be made in the manner provided by law.
Section 61-9-87. It shall be unlawful for any person to have in his possession any beer or wine in an open container in a moving vehicle of any kind, licensed to travel in this State or any other state, that may travel upon the public highways of this State, except in the trunk or luggage compartment. This section shall not be construed to prohibit transporting beer or wine in a closed container. Any person who violates the provisions of this section is guilty of a misdemeanor and upon conviction shall be fined not more than one hundred dollars or imprisoned not more than thirty days.
Section 61-9-90. It shall be unlawful for any person to sell or offer for sale any wine or beer in this State between the hours of twelve o'clock Saturday night and sunrise Monday morning; provided, however, that any establishment licensed pursuant to Sections 61-5-10 to 61-5-160 shall be authorized to sell such products during those hours in which the sale of alcoholic beverages in containers of two ounces or less is lawful. Any person violating the provisions of this section shall be deemed guilty of a misdemeanor and upon conviction shall be punished by a fine of not more than one hundred dollars or be imprisoned for not exceeding thirty days. The right of any person to sell wine and beer in this State at any time under a license issued by the State shall be forfeited and the license revoked upon his conviction of violating the provisions of this section. Municipal ordinances in conflict herewith shall be unenforceable.
Section 61-9-100. If any beer or wine is sold or delivered to anyone from any place of business between the hours of twelve o'clock Saturday night and sunrise Monday morning, all beer and wine found within the said place of business is hereby declared contraband and shall be seized by any peace officer and handled as contraband liquor. Provided, that the person owning or claiming such beer or wine may retain possession of it by delivering to the peace officer a cash bond in an amount equal to the cost price of the beer or wine. The cost price shall not be less than the average price charged for a like quantity of beer or wine by a licensed wholesaler. The peace officer receiving the bond shall deliver a written receipt to the person posting the bond. If the peace officer is a representative of the division, the cash bond shall be deposited in the State Treasury. If the peace officer is a representative of a municipality, the cash bond shall be deposited in the treasury of the municipality. In all other cases, the cash bond shall be deposited in the treasury of the county in which the beer or wine was located when declared contraband. If the Department of Revenue and Taxation or court shall determine that the person charged with the violation which required the posting of a bond was not guilty of the offense charged, the bond shall be returned to the person posting such bond. If the person so charged shall be found guilty, the bond shall be forfeited to the State, county or municipality, as the case may be. The licensee shall have a right to appeal any decision of the Alcoholic Beverage Control Hearing Officer and the department pursuant to Section 61-1-40.
Section 61-9-110. Any person who drinks beer or wine or possesses beer or wine in an open container between the hours of twelve o'clock Saturday night and sunrise Monday morning at any place licensed to sell beer or wine shall be deemed guilty of a misdemeanor and upon conviction shall be fined not more than one hundred dollars or be imprisoned for not more than thirty days.
Section 61-9-120. If any beer or wine is sold to anyone by a person who does not have a valid license to make such a sale, all beer and wine found on the premises of such person is hereby declared contraband and shall be seized by any peace officer and handled as contraband liquor.
Section 61-9-130. It shall be unlawful for any person to sell or offer for sale any wine or beer within any county of this State having a population as shown by the sixteenth census of the United States, commonly known as the census of 1940, of more than seventeen thousand five hundred and less than eighteen thousand five hundred, between the hours of eleven o'clock P. M. Saturday night and sunrise Monday morning.
Any person violating the provisions of this section shall be guilty of a misdemeanor and punished by a fine of not more than one hundred dollars or imprisonment for not more than thirty days.
Section 61-9-140. If any penalty imposed by this chapter remains due and unpaid for a period of ten days, the department shall issue a warrant under its bond and official seal in accordance with Article 1 of Chapter 53 of Title 12.
Section 61-9-170. Notwithstanding any other provision of law, a holder of a retail permit to sell beer and wine may transfer beer and wine to other businesses. For this transfer to be lawful, all businesses involved in the transfer must hold a retail beer and wine permit issued to the same individual, partnership, or corporation. In addition, a particular brand of beer may be transferred only between retail outlets located within the territorial restrictions described in the distribution agreement between the brewery and the wholesaler on file with the department pursuant to Section 61-9-1100. Transfers of beer and wine between retail beer and wine locations in a manner not authorized by this section, purchase of beer or wine by a retailer from another retailer for the purpose of resale, and sale of beer or wine by a retailer to a retailer for the purpose of resale are unlawful. A person violating the provisions of this section is guilty of a misdemeanor and, upon conviction, must be fined not more than two hundred dollars.
Article 2
Producers and Wholesalers of Beer and Wine
Section 61-9-210. `Producer' as used in this article means a brewery or winery or a manufacturer, bottler, or importer of beer or wine into the United States.
Section 61-9-220. Every producer shall apply to the department on the forms the department may prescribe for a certificate of registration, which certificate must be approved and issued before the shipment of beer or wine by the producer to a point within the geographic limits of South Carolina. Every producer, at the same time application is made for a certificate of registration, shall remit to the department a fee of two hundred dollars. Every certificate of registration is valid from the date of issue until the second August thirty-first after the issuance of the license. Beer and wine wholesalers shall purchase only beer, ale, or wine from manufacturers or importers who hold a certificate of registration issued by the department. Nothing in this section or Section 61-9-315 prevents the transfer or purchase and sale, for resale to retailers only, between wholesalers authorized by the registered producer or an exclusive agent in South Carolina to distribute the same brand or brands of wine, beer, or ale.
Section 61-9-230. The department, in its discretion, upon consideration of the information contained in applications for certificates provided for in this article, shall issue or reject the application.
Section 61-9-240. Certificates of registration provided for in this article may be suspended or revoked by the department upon a showing of a violation of law or of a regulation of the department.
Section 61-9-250. The department and the division have the right within statutory limitations to audit and examine the books and records, papers, and memoranda of a producer with respect to the administration and enforcement of laws administered by the department and the division.
Section 61-9-260. Any beer or wine shipped or moved into the geographic limits of South Carolina in violation of a provision of this chapter is declared contraband and may be seized and sold as provided in Section 61-13-570.
Section 61-9-270. The department shall administer the provisions of this chapter and the division shall enforce the provisions of this article.
Section 61-9-280. The department and the division may make the regulations, not inconsistent with law, that are necessary for the proper administration and enforcement of this article.
Section 61-9-290. All monies received by the department or the division under the provisions of this chapter must be deposited with the State Treasurer to the credit of the general fund of the State.
Article 3
Permits for Sales
Section 61-9-310. (A) Every person engaging in the business of selling beer, ale, porter, wine, or a beverage which has been declared to be nonalcoholic and nonintoxicating under Section 61-9-10 shall apply to the department for a permit to sell these beverages. Each applicant shall pay a filing fee of two hundred dollars which is not refundable. Retail dealers shall pay to the department four hundred dollars biennially for retail permits, and wholesale dealers shall pay to the department two thousand dollars biennially for wholesale permits. Separate permits are required for each separate place of business.
(B) All permits issued under this chapter expire biennially according to the county where the place of business is situated. The expiration dates are:
(1) the last day of February in years which end in an:
(a) odd number for Allendale, Bamberg, Barnwell, Beaufort, and Berkeley counties;
(b) even number for Charleston, Clarendon, Colleton, Dorchester, Georgetown, Hampton, Jasper, and Williamsburg counties;
(2) the last day of May in years which end in an:
(a) odd number for Cherokee, Chester, Chesterfield, Darlington, Dillon, Fairfield, Florence, and Horry counties;
(b) even number for Lancaster, Marion, Marlboro, Union, and York counties;
(3) the last day of August in years which end in an:
(a) odd number for Calhoun, Kershaw, Lee, Orangeburg, and Sumter counties;
(b) even number for Richland County;
(4) the last day of November in years which end in an:
(a) odd number for Abbeville, Aiken, Anderson, Edgefield, Greenville, and Greenwood counties;
(b) even number for Laurens, Lexington, McCormick, Newberry, Oconee, Pickens, Saluda, and Spartanburg counties.
(C)(1) Permittees in Abbeville, Aiken, Anderson, Calhoun, Edgefield, Greenville, Greenwood, Kershaw, Lee, Orangeburg, and Sumter shall obtain a one-year permit in 1992. Beginning in 1993 these permittees shall obtain a biennial permit.
(2) Permittees in Charleston, Clarendon, Colleton, Dorchester, Georgetown, Hampton, Jasper, Lancaster, Marion, Marlboro, Union, Williamsburg, and York counties whose permit expires in 1993 shall obtain a one-year permit. Beginning in 1994, these permittees shall obtain a biennial permit.
(3) Permittees in counties not provided in item (1) or (2) whose permit expires in 1992 or 1993 shall obtain a biennial permit upon their first permit renewal or registration after June 30, 1992.
(D) The department shall prorate permit fees for permit years 1992-94 according to the length of time the permit is valid.
Section 61-9-315. (A) A manufacturer or brewer of beer, ale, porter, or other malt beverages or any person who imports these products produced outside the United States shall not sell, barter, exchange, transfer, or deliver for resale any beer to any person not having a wholesale permit granted under Section 61-9-310, and a holder of a wholesale permit shall not sell, barter, exchange, transfer, or deliver for resale any beer to any person not having a retail or wholesale permit.
(B) A manufacturer, brewer, importer, or wholesaler of beer, or anyone acting on their behalf, shall not furnish, give, rent, lend, or sell, directly or indirectly, to the holder of a retail permit any equipment, fixtures, free beer, or service.
(C) Notwithstanding subsection (B), a wholesaler may furnish at no charge to the holder of a retail permit draft beer equipment replacement parts of nominal value, including washers, gaskets, hoses, hose connectors, clamps, and tap markers, party wagons for temporary use, and point of sale advertising specialties. A wholesaler may also furnish the following services to a retailer: cleaning draught lines, setting boxes, rotating stock, affixing price tags to beer products, and building beer displays.
(D) The holder of a retail permit, or anyone acting on his behalf, shall not accept, directly or indirectly, any equipment, fixtures, free beer, or service referred to in subsection (B) from a manufacturer, brewer, importer, or wholesaler of beer except as provided in subsection (C).
(E) A manufacturer, brewer, and importer of beer are declared to be in business on one tier, a wholesaler on another tier, and a retailer on another tier. Any person or entity in the beer business on one tier, or anyone acting directly or indirectly on his behalf, shall not have any ownership or financial interest in the beer business operation on another tier. This limitation does not apply to the interest held on July 1, 1980, by the holder of a wholesale permit in a business operated by the holder of a retail permit at premises other than where the wholesale business is operated.
(F) A manufacturer, brewer, importer, or wholesaler of beer may discount product price based on quantity purchases provided that all discounts must be on price only, must appear on the sales records, and must be available to all customers.
(G) No person or entity in the beer business on one tier may require any person or entity in such business on another tier to advertise or participate in a discount or special promotion.
Section 61-9-320. No permit authorizing the sale of beer or wine may be issued unless:
(1) The applicant, any partner or co-shareholder of the applicant, and each agent, employee, and servant of the applicant to be employed on the licensed premises, are of good moral character.
(2) The retail applicant is a citizen of this State for at least one year before the date of application and has maintained his principal place of abode in South Carolina for at least one year before the date of application.
(3) The wholesale applicant is a citizen of this State for at least one year before the date of application and has maintained his principal place of abode in South Carolina for at least one year before the date of application or has been licensed previously under the laws of this State.
(4) The applicant, within two years before the date of application, has not had revoked a beer or a wine permit issued to him.
(5) The applicant is twenty-one years of age or older.
(6) The location of the proposed place of business of the applicant is in the opinion of the department a proper one. The department may consider, among other factors, as indications of unsuitable location, the proximity to residences, schools, playgrounds, and churches. This item does not apply to locations licensed before its effective date.
(7) Notice of application has appeared at least once a week for three consecutive weeks in a newspaper most likely to give notice to interested citizens of the county, city, or community in which the applicant proposes to engage in business. The department shall determine which newspapers meet the requirements of this section based on available circulation figures. However, if a newspaper is published within the county and historically has been the newspaper where the advertisements are published, the advertisements published in that newspaper meet the requirements of this section. Applicants for a beer or wine permit and an alcoholic liquor license may use the same advertisement for both if it is approved by the department.
(8) Notice has been given by displaying a sign for fifteen days at the site of the proposed business. The sign must:
(a) state the type of permit sought;
(b) tell an interested person where to protest the application;
(c) be in bold type;
(d) cover a space at least eleven inches wide and eight and one-half inches high;
(e) be posted and removed by an agent of the department.
Section 61-9-330. In considering an application for a permit for the sale of beer or wine at a location within five miles of a political subdivision of a foreign state in which the sale of beer or wine is prohibited, the department shall, in addition to the factors now required to be considered, take into account the proximity of the location to the prohibited area, the likelihood that large crowds will gather from time to time with attendant breaches of the peace, the requirement of increased law enforcement officers, and any other factor which in its judgment should rightfully be considered, before issuing the permit. These special considerations, however, shall not apply where the application is made with respect to a location within the corporate limits of a municipality.
Section 61-9-340. When upon the filing of a verified application with the department it is shown that the foregoing qualifications and conditions are met and when upon investigation of the division it is determined by the department that the applicant is a fit person to sell beer or wine and that the location of the proposed place of business is a proper one, the department shall issue a permit to such applicant to sell beer or wine on the premises described in the application upon the payment of the fee prescribed by law. Any misstatement or concealment of fact in an application shall be a sufficient ground for the revocation of the permit issued by reason of such application.
The department may, in those cases where it deems necessary, require an applicant to post a cash bond or surety bond with a bonding company approved by the State Insurance Commission, as an additional condition for a permit. The bond shall be in such amount as may be determined by the department and shall be subject to forfeiture in whole or in part for violations of law relating to the sale of beer or wine.
Section 61-9-360. The department may issue permits running for a period not exceeding fifteen days for a fee of ten dollars per day. Such special permits shall be issued only for locations at fairs and special functions.
Section 61-9-380. In addition to the penalties provided herein, the department may revoke the permit of any person failing to comply with any or all of the requirements hereof.
Section 61-9-390. Any dealer, wholesale or retail, failing to secure a permit required in this article shall be guilty of a misdemeanor and, upon conviction, shall be subject to a fine of not less than ten dollars nor more than one hundred dollars or imprisonment not less than ten days nor more than thirty days, in the discretion of the court. Each day that such business is carried on without a permit shall constitute a separate offense.
Section 61-9-400. Notwithstanding any other provisions of law, any establishment that holds a valid beer and wine license and license to sell alcoholic beverages in containers of two ounces or less, may sell wine which is not in excess of twenty-one percent of alcohol by volume as defined in Section 61-9-10, to be consumed on the premises.
Section 61-9-410. No holder of a permit authorizing the sale of beer or wine or any servant, agent, or employee of the permittee shall knowingly do any of the following acts upon the licensed premises covered by the holder's permit:
(1) sell beer or wine to a person under twenty years of age and effective September 14, 1986, under twenty-one years of age;
(2) sell beer or wine to any person while the person is in an intoxicated condition;
(3) permit gambling or games of chance;
(4) permit lewd, immoral, or improper entertainment, conduct, or practices. This includes, but is not limited to, entertainment, conduct, or practices where a person is in a state of undress so as to expose the human male or female genitals, pubic area, or buttocks cavity with less than a full opaque covering;
(5) permit any act, the commission of which tends to create a public nuisance or which constitutes a crime under the laws of this State; or
(6) sell, offer for sale, or possess any beverage or alcoholic liquor the sale or possession of which is prohibited on the licensed premises under the law of this State.
A violation of any of the foregoing provisions is a ground for the revocation or suspension of the holder's permit.
Section 61-9-420. The department shall have jurisdiction of any proceedings brought for the revocation or suspension of permits authorizing the sale of beer or wine. The department may, on its own initiative or on complaint signed and sworn to by two or more freeholders resident for the six preceding months in the community in which the licensed premises are located or by any local peace officer, all of whom are hereby charged with the duty of reporting immediately to the department any violation of the provisions of Section 61-9-410 hereof, institute proceedings to revoke or suspend any such permit after a hearing at which the permittee shall be given an opportunity to be heard. Such hearing shall be held in such manner and upon such notice as may be prescribed by rules of the department. The judgment of the hearing officer or the department revoking or suspending such permit shall not be superseded or stayed during the pendency of an appeal therefrom.
Section 61-9-430. Upon the revocation, cancellation or suspension of a license or permit to sell beer or wine, at wholesale or retail, the licensee shall immediately surrender his license to the department.
Section 61-9-440. It shall be unlawful for any licensee, or any holder of a license to sell beer or wine at wholesale or retail, to sell or offer to sell beer or wine after such license shall have been revoked or canceled or during the period of a suspension of such license.
Section 61-9-450. Any person violating any of the provisions of Sections 61-9-430 or 61-9-440 shall be guilty of a misdemeanor and, upon conviction, shall be punished by a fine of not less than twenty dollars nor more than one hundred dollars or by imprisonment for not less than ten days nor more than thirty days, or by both such fine and such imprisonment, in the discretion of the court.
Article 5
Provisions Affecting Wine Only
Section 61-9-610. Regulation No. 4 of the Treasury Department, Federal Alcohol Administration Division, relating to `Labeling and Advertising of Wine', is hereby adopted for the labeling and advertising of wine sold or offered for sale in this State, except insofar as the same shall differ from existing laws of the State or from any regulations adopted by the department.
Section 61-9-615. Notwithstanding any other provision of law, any licensed winery in this State which produces and sells only domestic wine as defined in Section 12-21-1010 is authorized to sell such domestic wine with an alcoholic content of fourteen percent or less on the winery premises and deliver or ship such wine to consumer homes within or without the State. Such domestic wineries are further authorized to provide without cost wine taste samples to prospective customers.
Section 61-9-617. Permitted wineries which produce and sell only domestic wine as defined in Section 12-21-1010 may sell the wine at retail, wholesale, or both, and deliver or ship the wine to the purchaser in South Carolina. Domestic wine must be delivered between 7:00 a.m. and 7:00 p.m.
Section 61-9-620. It shall be unlawful for any person to import, sell or offer for sale in this State wines of which the labels, standards, or identity do not conform to the provisions of said Regulation No. 4. Imitation, concentrate and substandard wines, as defined in said Regulation No. 4, are hereby prohibited from sale in this State.
Section 61-9-625. No person other than a registered producer may ship or move, or cause to be shipped or moved, any beer, ale, porter, malt beverage, or wine from a point outside South Carolina to a point within the geographic limits of South Carolina, and then only in accordance with the provisions of this chapter. No brand may be registered by the producer unless the person registering the brand is either the American producer or the primary American source of supply in the United States of the brand as herein defined, and it is unlawful for any wholesaler in this State to order, purchase, or receive any beer, ale, porter, malt beverage, or wine from any producer who is not the primary American source of supply for the brand ordered, purchased, or received. The term primary American source of supply means the manufacturer, distiller, vintner, brewer, producer, winery, or owner of vinous or spirituous beverages at the time they become a marketable product, or bottler, or the exclusive agent of these persons, who, if the product cannot be secured directly from the manufacturer by an American distributor, is the source closest to the manufacturer in the channel of commerce from whom the product can be secured by an American distributor, or who, if the product can be secured directly from the manufacturer by an American distributor, is the manufacturer. The provisions of this section do not apply to any person who produces beer, ale, porter, malt beverage, or wine solely in this State and who subsequently ships or sells this beer, ale, porter, malt beverage, or wine solely in this State.
Section 61-9-626. An individual may order wine produced outside this State, which has not been approved or licensed for sale or distribution in this State, from an in-state wholesaler by placing a special order for this wine with the out-of-state winery. The wine may then be shipped by the winery to that wholesaler who, after paying or affixing the necessary taxes or tax stamps, is authorized to sell this wine to that individual through a licensed retailer.
Section 61-9-630. The importation into, offering for sale or sale in this State of any product as `wine' to which any substance shall have been added, except as permitted by federal law and regulations and except pure fruit or vegetable products derived from the same kind of fruit or vegetable from the juice of which the wine was fermented, is hereby prohibited and declared to be a misdemeanor.
Section 61-9-640. The division shall provide for the inspection of all wines imported into or offered for sale in this State, the expense thereof to be paid from the proceeds of the wine tax. The department may make regulations as to the containers in which wine may be sold at retail and to declare to be `undesirable wine packages' any wine sold in a container prohibited in such regulations or any wine the sale of which is prohibited in Sections 61-9-620 or 61-9-630. The offering for sale or sale in this State of any undesirable wine packages, as declared by the department, under this section, is hereby prohibited and declared to be a misdemeanor.
Section 61-9-650. Any person who shall violate any provision of this article or any rule or regulation promulgated by the department or the division under the authority of this article shall, upon conviction thereof, be punished by a fine of not less than one hundred dollars nor more than five hundred dollars or by imprisonment for not less than thirty days nor more than six months, or both such fine and imprisonment, in the discretion of the court. Any person convicted of violating any of the provisions of this article or any rules or regulations of the department or the division made under authority of this article shall forfeit his permit to sell wine and shall not thereafter for a period of two years be permitted to engage in any business taxable under the provisions of this chapter.
Article 7
Provisions Affecting Beer Only
Section 61-9-810. No person holding a retail permit to sell beer, ale, porter and other similar malt or fermented beverages, issued by the department, shall sell such beverages on draft, on tap or from kegs or other containers on the premises described in the permit, unless approved by the rules and regulations of the Department of Health and Environmental Control governing eating and drinking establishments and other retail food establishments.
Section 61-9-820. Both the permit issued by the department and the certificate of approval issued by the Department of Health and Environmental Control shall be conspicuously posted on the premises.
Section 61-9-830. Any person violating any of the provisions of this article shall be guilty of a misdemeanor and, upon conviction, shall be subject to a fine of not less than ten dollars nor more than one hundred dollars, or imprisonment not less than ten days nor more than thirty days, at the discretion of the court.
Section 61-9-840. In addition to the above penalty, the department, within its discretion, shall have the right to revoke or suspend any retail permit for any violation of this article.
Section 61-9-850. The department and the division shall make and promulgate such rules and regulations as are necessary to carry out enforcement of the beer and wine laws in respect to application for and issuing of beer licenses, permits or brewers' certificates of approval and also make any rules necessary concerning the manner of sale, distribution, promotion and shipment of beer into and within the State. These rules and regulations shall have full force and effect of law. The department shall revoke or suspend the license, permit or brewers' certificate of approval of any person for the violation of any rule or regulation which may be enacted or invoke a penalty, not to exceed the sum of one hundred dollars, for each violation.
Section 61-9-860. It is unlawful for a wholesaler to purchase advertising for a retailer or to participate in a joint advertising campaign with a retailer provided that a brewer or wholesaler may advertise on a retailer's premises and may purchase program advertising from a retailer at customary rates.
Article 9
Beer Wholesaler Franchise
Section 61-9-1010. (1) It shall be unlawful for any producer holding a certificate of registration from the department (hereinafter called a registered producer) or any officer, agent, or representative of any registered producer:
(a) to coerce, or attempt to coerce, or persuade, any person holding a permit to sell beer, ale, porter, and other similar malt or fermented beverages at wholesale (hereinafter referred to as a beer wholesaler) to enter into any agreement to take any action which would violate any provision of this article or any ruling or regulation promulgated pursuant to law in accordance therewith; or
(b) to unfairly, without due regard to the equities of such beer wholesaler, or without just cause or provocation, to cancel or terminate any agreement or contract, written or oral, or franchise, or any contractual franchise relationship of such wholesaler existing on May 1, 1974, or thereafter entered into, to sell beer manufactured by the registered producer; provided, also, that this provision shall be a part of any contractual franchise relationship, whether written or oral, between any beer wholesaler and any registered producer doing business with such beer wholesaler, just as though such provision had been specifically agreed upon between such beer wholesaler and such registered producer; provided, further, however, notice of intention to cancel such agreement or contract, written or oral, or franchise or contractual franchise relationship shall be given in writing at least sixty days prior to the date of such proposed cancellation or termination. Such notice shall contain (i) assurance that the agreement or contract, written or oral, or franchise or contractual franchise relationship is being terminated in good faith and for material violation of one or more provisions which are relevant to the effective operation of the agreement, or contract, written or oral, or franchise or contractual franchise relationship, if any, and (ii) a list of the specific reasons for the termination or cancellation.
(2) It shall be unlawful for any beer wholesaler:
(a) to enter into an agreement or take any action which would violate or tend to violate any provision of this article or any ruling promulgated pursuant to law in accordance therewith; or
(b) to unfairly, without due regard for the equities of a registered producer, or without just cause or provocation, to cancel or terminate any agreement or contract, written or oral, or franchise or any contractual franchise relationship of such registered producer existing on May 1, 1974, or thereafter entered into, to sell beer manufactured by the registered producer; provided, that this provision shall become a part of any contractual franchise relationship, whether written or oral, between any beer wholesaler and any registered producer doing business with such beer wholesaler, just as though such provision had been specifically agreed upon between such beer wholesaler and such registered producer; provided, further, however, notice of intention to cancel such agreement or contract, written or oral, or franchise or contractual franchise relationship shall be given in writing at least sixty days prior to the date of such proposed cancellation or termination. Such notice shall contain (i) assurance that the agreement or contract, written or oral, or franchise or contractual franchise relationship is being terminated in good faith and for material violation of one or more provisions which are relevant to the effective operation of the agreement, or contract, written or oral, or franchise or contractual franchise relationship, if any, and (ii) a list of the specific reasons for the termination or cancellation.
(c) to refuse to sell to any licensed retail dealer whose place of business is within the geographical limits specified in any distributorship agreement between the beer wholesaler and the registered producer for the brands involved.
(d) to store or warehouse any beer or other malt beverages to be sold in the State of South Carolina in any warehouse located outside of the State of South Carolina.
Section 61-9-1020. If a registered producer and a beer wholesaler licensed by the State at the time that they were engaged in the shipment and receipt of any malt beverages intended for sale within the State of South Carolina on May 1, 1974, and such shipment and receipt shall be continued until April 1, 1974, the limitations on the cancellation or termination of any agreement or contract, written or oral, or franchise, or any contractual franchise relationship provided in Section 61-9-1010(1)(b) and in Section 61-9-1010(2)(b) above shall be applicable with respect to such shipment and receipt of such malt beverages so that neither the registered producer nor the beer wholesaler shall have the right to discontinue such shipment and receipt except under the conditions specified in those subsections.
Section 61-9-1030. The court of common pleas is hereby vested with jurisdiction and power to enjoin the cancellation or termination of a franchise or agreement between a beer wholesaler and a registered producer, at the application of such beer wholesaler or producer who is or might be adversely affected by such cancellation or termination, and, in granting an injunction the court shall make such provisions as might be necessary to protect such beer wholesaler or registered producer while such injunction is in effect, including, but not limited to, a provision that such registered producer shall not supply the customers of such beer wholesaler by servicing such customers through other distributors or means or a provision that such beer wholesaler shall continue to supply to his customers the products of the registered producer. Application may be made by the beer wholesaler or producer to the appropriate court in the county in which the business of the wholesaler is located. The court may require a bond to be posted on the part of the party seeking such injunction, securing the party enjoined for such damages and in such amount as to the court may appear proper.
Section 61-9-1040. (1) Except as hereinafter provided, any proposed sale of an interest in the business carried on by any beer wholesaler which under the laws of this State would require that the purchaser obtain a permit to operate as a beer wholesaler shall be subject to the approval of the purchaser by the department as an applicant for a permit authorizing the sale of beer. If the application of such prospective purchaser for such permit is approved, it shall be unlawful, notwithstanding the terms, provisions or conditions of any contract, written or oral, or the franchise agreement between such beer wholesaler and the registered producer, for any registered producer to fail or refuse to approve the aforedescribed transfer or change of ownership; provided, further, that in the case of any proposed sale with respect to which the purchaser has been approved by the department, the registered producer shall have the right to require that the interest in the business carried on by the beer wholesaler be transferred to the registered producer upon the same terms and conditions as such interest would have been transferred to the prospective purchaser. If the registered producer shall not, within sixty days after receipt of notification by certified mail of such proposed sale, notify the beer wholesaler by certified mail of the exercise of such right by the registered producers, such right may not thereafter be exercised.
(2) Except as hereinafter provided, any proposed voluntary transfer of an interest in the business carried on by any beer wholesaler or any transfer of ownership in such business by death shall be subject to the approval of the prospective transferee by the registered producer. Such approval shall not be unreasonably withheld. If notice of disapproval of such prospective transferee shall not be given by certified mail by the registered producer within sixty days after receipt of notification of such proposed voluntary transfer or within sixty days after the death of the owner of the interest, such right of disapproval may not thereafter be exercised. In the event that such right of disapproval is exercised by the registered producer, the registered producer shall, within sixty days thereafter, pay to the prospective transferee the fair market value of the interest in the business proposed to be transferred. In the event that agreements cannot be reached between the registered producer and the transferee within such period, the registered producer shall be deemed to have acquired the interest proposed to be transferred and shall pay the prospective transferee the value of such interest. The value of such interest shall be determined by an appraiser appointed by the prospective transferee and an appraiser appointed by the registered producer. If such two appraisers cannot agree upon the value, the court of common pleas for the county in which the principal place of business of the beer wholesaler is located shall appoint a disinterested person as a third appraiser. Such appointment shall be made as soon as practicable. The prospective transferee and the registered producer shall each have the right within sixty days to appeal to the court of common pleas or any other court of competent jurisdiction in the county in which the principal place of business of the beer wholesaler is located from the determination of the price to be paid.
Section 61-9-1050. The division is empowered to investigate any violations of this article and to furnish to the prosecuting attorney of any court having jurisdiction of the offense information with respect to any violations of this article. The division shall have the power to enforce compliance with the provisions of any injunction granted by the court under the terms of this article, and, if the court finds that there has been a violation of the provisions of any injunction granted by it, the department may revoke or suspend the permit of any beer wholesaler and may revoke the registration of any registered producer and its right to ship beer into the State of South Carolina.
Article 10
Territorial Restrictions; Distribution Agreements
Section 61-9-1100. Pursuant to the authority of the State under the Twenty-First Amendment to the United States Constitution and to promote the public's interest in fair and efficient distribution of beer, ale, porter, and other similar malt or fermented beverages, and to assure the public's interest in uniform and effective control of the distribution of such beverage products within the State, a wholesaler may sell any brand of such beverage products in this State only in the territory described in a distribution agreement filed pursuant to this article authorizing sale by the wholesaler of the brand within that designated area. Within that designated area the wholesaler shall service all holders of retail permits without discrimination. The distribution agreement must be in writing, must specify the brands it covers, and must be filed with the department. If a brewer sells several brands, the agreement need not apply to all brands sold by the brewer and may apply to only one brand. No brewer, importer, or other supplier may provide by a distribution agreement for the distribution of the brand filed pursuant to this article to more than one wholesaler for all or any part of the designated territory. A wholesaler may, however, service a territory outside the territory designated in its distribution agreement during periods of temporary service interruptions when so requested by the brewer and the wholesaler whose service is temporarily interrupted with the approval of the department.
Section 61-9-1110. Each wholesaler must file a copy of its distribution agreement with the department within sixty days following the effective date of this article and any amendments thereto must be filed within sixty days after adoption.
Section 61-9-1120. No provision of any distribution agreement may expressly, by implication, or in its operation, establish or maintain the resale price of any brand of such beverage products by a wholesaler.
Article 11
Construction and Operation of
Breweries and Wineries
Section 61-9-1210. Any person may construct, maintain or operate any brewery or winery within this State for the production of any of the beverages legalized under this chapter.
Section 61-9-1220. A person desiring to construct, maintain, or operate a brewery or winery under this article first shall apply to the department for a permit. The application must be in writing in a form the department may prescribe. The applicant is subject to the payment of a biennial permit tax upon each brewery and on each commercial winery to be established and operated of two hundred dollars which must be paid to and collected by the department before a permit is issued. However, the owner and operator of a winery who consumes in the operation only the fruits produced on his own farm or premises is subject to the payment of a permit fee of only ten dollars biennially. The permit expires December biennially. The fees charged for permits for the operation of breweries and wineries must be prorated by reducing the permit cost by one-eighth January 1, April 1, July 1, and October 1 each year. A brewer or commercial wine manufacturer commencing business during one of these intervals shall pay for the eighth of the permit period in which business is commenced and for the eighth of the permit period during the remainder of the period, but no refund may be made to a dealer who ceases business after securing a permit.
Section 61-9-1230. All wines and brewed products referred to in this article shall be stamped by the manufacturer or producer in the manner provided by law for paying the tax on soft drinks and at the rates provided in Article 7 of Chapter 21 of Title 12. But a manufacturer or producer of beer or wine shall not be required to affix the tax-paid crowns or stamps to beer and wine intended to be sold outside this State.
Section 61-9-1240. The department and the division shall make rules and regulations for the operation of breweries and commercial wineries authorized under this article. Such rules and regulations after they are reduced to writing, filed with the Secretary of State as required by law and mailed or otherwise delivered to a person operating a brewery or winery shall have the force and effect of law and upon violation of any such rules and regulations the license or permit provided for herein shall be forthwith canceled and become null and void.
Section 61-9-1250. Any person operating a brewery or winery without having secured a permit from the department or after his permit has been canceled by the department shall be guilty of a misdemeanor and, upon conviction, shall be fined not less than one hundred dollars nor more than five thousand dollars or imprisoned not more than one year, either or both.
Section 61-9-1260. For the purpose of administration and enforcement of this article so much of Chapter 21 of Title 12, wherever applicable, is hereby adopted and made a part hereof.
Section 61-9-1270. (a) All beer and wine purchased by military establishments located in the State shall be purchased from wholesalers licensed in this State to sell such beer and wine. Purchase orders from the military establishments shall be furnished to a licensed wholesaler and the orders shall be processed and delivered by the wholesaler as nonmilitary orders are processed and delivered except that the delivery shall be made to the military establishments rather than to a licensed retailer.
(b) Beer and wine sold to the military establishments shall be exempt from state beer and wine taxes.
(c) The department and the division may promulgate regulations necessary to implement the provisions of this section.
(d) Any registered producer who sells beer and wine in violation of this section shall have its certificate of registration, as provided for in Section 12-21-1510, suspended for such period as the department shall determine."
Name changed
SECTION 1587. Section 61-9-340 of the 1976 Code is amended to read:
"Section 61-9-340. When upon the filing of a verified application with the department it is shown that the foregoing qualifications and conditions are met and when upon investigation of the department it is determined by the department that the applicant is a fit person to sell beer or wine and that the location of the proposed place of business is a proper one, the department shall issue a permit to such applicant to sell beer or wine on the premises described in the application upon the payment of the fee prescribed by law. Any misstatement or concealment of fact in an application shall be a sufficient ground for the revocation of the permit issued by reason of such application.
The department may, in those cases where it deems necessary, require an applicant to post a cash bond or surety bond with a bonding company approved by the Department of Insurance, as an additional condition for a permit. The bond shall be in such amount as may be determined by the department and shall be subject to forfeiture in whole or in part for violations of law relating to the sale of beer or wine."
Record in administrative proceedings
SECTION 1588. Section 61-13-295 of the 1976 Code is amended to read:
"Section 61-13-295. If any permittee or licensee, or servant, agent, or employee of the permittee or licensee pleads guilty or nolo contendere to, or is convicted of any criminal offense which occurred on the licensed premises, the conviction or plea constitutes proof that the offense occurred and the record thereof is admissible in an administrative proceeding before the commission or the Alcoholic Beverage Control Hearing Officer."
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SECTION 1589. Section 61-13-410 of the 1976 Code is amended to read:
"Section 61-13-410. Any person who, upon demand of any officer or agent of the division, refuses to allow full inspection of the premises or any part of it which is licensed to sell alcoholic liquors or beer or wine, or refuses to allow full inspection of the stocks and invoices of the licensee or who hinders or in any way hinders or prevents the inspection is guilty of a misdemeanor and, upon conviction, must be fined not more than two hundred dollars or imprisoned for a period not exceeding sixty days, or both."
Name changed
SECTION 1590. Section 61-13-470 of the 1976 Code is amended to read:
"Section 61-13-470. The clerk of court of each county in the State shall, at the conclusion of each term of the court of general sessions therein, forward to the department a certificate on forms prescribed and furnished by the department showing the name of each person who is convicted, pleads guilty, enters a plea of nolo contendere or forfeits bond for the violation of any of the provisions of this article, except Section 61-13-360. The department shall maintain a file of such violations and a copy of its records pertaining to such conviction, certified as correct by the director of the beverage tax division, or by any member of the department, shall be admissible in all courts as prima facie evidence of the facts therein recited. The department shall, upon receipt of a record of conviction, plea of guilty, plea of nolo contendere or forfeiture of bond for the violation of the provisions of this article prohibiting the transportation of alcoholic liquors, forward to the Department of Public Safety a duly certified copy of such record."
Name changed
SECTION 1591. Section 61-13-500 of the 1976 Code is amended to read:
"Section 61-13-500. A conviction, a plea of guilty, a forfeiture of bond, or a plea of nolo contendere, under the provisions of this article, except Section 61-13-360, shall automatically revoke any beer, wine, or liquor license which this State may have at any time issued to the party convicted, pleading guilty, forfeiting bond, or pleading nolo contendere; however, as an alternative to the revocation of any beer, wine, or liquor license, as above provided, the department may in its discretion impose a monetary penalty in lieu of the revocation.
For the first offense, the license shall either be revoked for a period of one year, or the licensee shall pay a penalty to the department in the sum of two hundred fifty dollars. In the event of a subsequent offense, the offender's license or licenses shall be revoked for a period of two years, or the licensee shall pay a penalty in the sum of five hundred dollars to the department. In the event that the department exercises its right to impose the monetary penalty provided for herein in lieu of a revocation of a license and if, for any reason, the penalty is not paid within ten days of demand by the department, the license or licenses shall be automatically revoked as herein provided.
If the party convicted, pleading guilty, forfeiting bond or pleading nolo contendere does not possess a license to sell beer or liquor, in the event of his first offense, he shall not be eligible for the issuance of such a license for a period of one year. In the event of a subsequent offense, he shall not be eligible for the issuance of such a license for a period of two years."
Name changed
SECTION 1592. Section 61-13-510 of the 1976 Code is amended to read:
"Section 61-13-510. For all violations of Chapters 3, 7, 9, and 13 of this title, or of Chapter 21 or 33 of Title 12, and for any violation of any regulation promulgated by the department or the division pertaining to beer, wine, or liquor, the department may, in its discretion, impose a monetary penalty upon the holder of any beer, wine or liquor license in lieu of suspension or revocation thereof.
In such cases the amount of penalty imposed, if any, shall be determined within the limits prescribed hereafter in each case by the department after a hearing as provided in Sections 61-3-770 or 61-9-420. For any of such violations retail beer and wine licensees shall be subject to a penalty of not less than twenty-five dollars nor more than one thousand dollars. Wholesale beer and wine licensees and retail liquor licensees shall be subject to a penalty of not less than one hundred dollars nor more than one thousand five hundred dollars and wholesale liquor licensees shall be subject to a penalty of not less than five hundred dollars nor more than five thousand dollars. In the event the department imposes a monetary penalty; as provided above, and if, for any reason, the penalty is not paid within ten days after demand thereof by the department, such license or licenses may be suspended or revoked by the department."
Name changed
SECTION 1593. Section 61-13-540 of the 1976 Code is amended to read:
"Section 61-13-540. The South Carolina Department of Revenue and Taxation, upon notice that any person has been convicted, pleaded guilty, or forfeited bond, or entered a plea of nolo contendere for the violation of any of the provisions of this article prohibiting the transportation of alcoholic liquors, shall suspend the driver's license of such person for a period of six months for a first offense, for a period of one year for the second offense, and for a period of two years for a third and subsequent offense; and such person shall not, during the period of any suspension made hereunder, have any vehicle registered in his name under the laws of this State."
Name changed
SECTION 1594. Section 61-13-570 of the 1976 Code is amended to read:
"Section 61-13-570. Any alcoholic liquors seized by the department, its agents, or by the division shall be sold by the department at public auction to the highest bidder after due advertisement and the proceeds of such sale shall be turned over to the State Treasurer, as other funds collected by the department, after first paying the cost of confiscation and sale. Any alcoholic liquors seized by any peace officer, except the department, its duly authorized agents, or by the division, shall be delivered to the sheriff of the county in which such seizure is made and the sheriff shall take possession of such alcoholic liquors so seized for sale at public auction to the highest bidder after due advertisement. The proceeds of such sale, after payment of the costs of confiscation and sale, shall be immediately turned over to the treasurer of the county in which the seizure was made; provided, however, that when municipal officers make such seizure, the chief of police shall take possession of such alcoholic liquors so seized for sale at public auction to the highest bidder after advertisement, and the proceeds of such sale, after payment of costs of confiscation and sale, shall be turned over to the treasurer of the municipality in which the seizure was made. No sale of alcoholic liquors seized and sold in accordance with the provisions of this section shall be made to any person other than a duly licensed manufacturer, wholesaler or retail dealer; and all such goods so seized shall, before delivery to any purchaser, be stamped by such purchaser with the proper amount of stamps on each individual package."
Name changed
SECTION 1595. Section 61-13-620 of the 1976 Code is amended to read:
"Section 61-13-620. Should a chattel seized under this article be a vehicle registered with the South Carolina Department of Revenue and Taxation, the sheriff shall ascertain from the Department of Revenue and Taxation the name and address of the person in whose name such car is registered and shall notify such person by registered mail of such seizure; should the chattel be a vehicle registered in another state, the sheriff shall request the Department of Revenue and Taxation to ascertain the name and address of the registered owner of such vehicle, and shall notify such owner in like manner."
Name changed
SECTION 1596. Section 61-13-630 of the 1976 Code is amended to read:
"Section 61-13-630. Immediately upon notification being given by the sheriff as required by Section 61-13-620 or upon notice from the Department of Revenue and Taxation that the name of the registered owner of the seized vehicle cannot be ascertained, the sheriff shall give notice of the seizure made under this article by advertisement thereof at least once a week for a period of three weeks in a paper of general circulation in the county. Such advertisement shall allege the seizure, describe the chattel, set forth in general terms the grounds of forfeiture of the seized property, and the date upon which sale thereof is to be made, which date shall be not less than sixty days after seizure of the chattel."
Name changed
SECTION 1597. Section 61-13-750 of the 1976 Code is amended to read:
"Section 61-13-750. The sheriff of each county shall, upon seizure of or delivery to him of any chattel seized under the provisions of this article, report the seizure of such chattel to the department, setting forth in such report a description of the chattel, the name of the owner, if known, the grounds upon which the chattel has been seized, by whom it was seized, and the appraised value thereof, if such appraisal has been made. Each sheriff shall likewise, after the chattel has been sold or disposed of in accordance with the provisions of this article, make a report to the department, setting forth the amount of such sale, the purchaser, the disposition of the proceeds, or whatever disposition has been made of the chattel by the sheriff pursuant to an order of court. The department shall establish a system for the filing and recording of such reports made to it."
Name changed
SECTION 1598. Section 61-13-810 of the 1976 Code is amended to read:
"Section 61-13-810. It is unlawful for a person, with or without a beer or wine permit, to sell or to offer for sale beverage, generally used as and for a soft drink rather than as a medicine or for cooking purposes, having an alcoholic content, when the beverage resembles in color and general appearances a vegetable drink, a fruit drink, or a soft drink. Violation of this section is a misdemeanor and is punishable in the discretion of the court. In addition, drinks are declared contraband and must be seized by any duly authorized agent, or inspector of the division, or by any peace officer, and must be disposed of in a manner as provided by law for the disposition of illegal alcoholic liquors."
Summons for violations
SECTION 1599. Section 61-13-835 of the 1976 Code is amended to read:
"Section 61-13-835. There shall be one official summons which shall be used by all agents and inspectors of the division when making arrests for violations of the laws and regulations governing alcoholic beverages, beer, and wine when the offenses are punishable by a fine of not more than two hundred dollars or imprisonment for not more than thirty days. The form of the summons shall be prescribed by the division and it shall be responsible for printing the forms."
Name changed
SECTION 1600. Section 61-13-836 of the 1976 Code is amended to read:
"Section 61-13-836. When any person is charged by an agent or inspector of the division with a criminal offense punishable by a fine of not more than two hundred dollars or imprisonment for not more than thirty days, the person charged, upon being served with the official summons issued by the agent or inspector, shall appear before the proper judicial officer at the time and place stated in the summons. The service of the summons shall vest the court with jurisdiction to hear and dispose of the charge for which the summons was issued."
Transfer to Department of Public Safety-use of revenues
SECTION 1601. (A) On the effective date of this act, the employees, current appropriations, and personal property of the law enforcement components of the Alcoholic Beverage Control Commission, made a part of the South Carolina Law Enforcement Division by this act are transferred to the South Carolina Law Enforcement Division. All those classified or unclassified personnel employed by this agency on the effective date of this act, either by contract or by employment at will, shall become employees of the South Carolina Law Enforcement Division, with the same compensation, classification, and grade level, as applicable. The Budget and Control Board shall cause all necessary actions to be taken to accomplish this transfer and shall prescribe the manner in which the transfer provided for in this act shall be accomplished.
(B)(1) Wherever the term `officer', `agent', `investigator', `inspector', or any similar variation appears in Title 61 of the 1976 Code or in any other provision of law as it relates to the law enforcement functions transferred to the South Carolina Law Enforcement Division by the provisions of this act, these terms must be construed to mean the appropriate personnel of the South Carolina Law Enforcement Division.
(2) The term `enforcement' or any similar variation as used in Title 61 of the 1976 Code or in any other provision of law as it relates to the South Carolina Law Enforcement Division or the Alcoholic Beverage Control Commission, respectively, must be construed to mean administrative enforcement functions of the applicable provisions of law. The term `enforcement' or any similar variation as used in Title 61 of the 1976 Code as it relates to law enforcement functions must be construed to mean law enforcement by the South Carolina Law Enforcement Division and its duly authorized personnel.
(C) Law enforcement personnel of the ABC Commission transferred to the South Carolina Law Enforcement Division by the provisions of this act must continue to meet those qualifications and criteria as formerly applied to them at these agencies, unless such qualifications or criteria have been amended by this act, but are not automatically considered to have been appointed SLED agents under Article 1, Chapter 3 of Title 23 of the 1976 Code unless further action is taken to accomplish same by the Governor and the chief.
(D) The law enforcement personnel of the Alcoholic Beverage Control Commission transferred to the South Carolina Law Enforcement Division pursuant to the terms of this act shall continue to occupy the same offices and facilities which they now occupy unless or until otherwise changed by the chief of the department. The cost of these offices and facilities, if any, shall continue to be paid by the agency or department formerly employing these law enforcement personnel until otherwise provided by the General Assembly or the Budget and Control Board. The records and files of the agencies which formerly employed these personnel shall continue to remain the property of these agencies, except that these personnel shall have complete access to these records and files in the performance of their duties as new employees of the South Carolina Law Enforcement Division.
(E) All fines, fees, forfeitures, or revenues imposed or secured by these law enforcement personnel so transferred to the South Carolina Law Enforcement Division must continue to be used and expended for those purposes now provided by law. If a portion of these fines, fees, forfeitures, or revenues were required to be used for the support, benefit, or expense of these law enforcement personnel so transferred, such funds must continue to be used for these purposes.
Name changed
SECTION 1602. Section 61-13-875 of the 1976 Code is amended to read:
"Section 61-13-875. No person who holds a permanent license or permit to sell beer, wine, or alcoholic liquor for on-premises consumption may advertise, sell, or dispense these beverages for free, at a price less than one-half of the price regularly charged, or on a two or more for the price of one basis. Beer, wine, or alcoholic liquor may be sold at a price less than the price regularly charged only from four o'clock p.m. until eight o'clock p.m. The prohibition against dispensing the beverages for free does not apply to dispensing to a customer on an individual basis, to any fraternal organization in the course of its fund-raising activities, to any person attending a private function on any premises for which a permanent license or permit has been issued, or to any customer attending a function sponsored by the person who holds a permanent license or permit; provided, that not more than two functions may be sponsored each year, which must be authorized by the department. Any person violating the provisions of this section is guilty of a misdemeanor and, upon conviction, must be punished as provided in Section 61-13-870."
Name changed
SECTION 1603. Section 61-13-885 of the 1976 Code is amended to read:
"Section 61-13-885. Every person engaged in the business of selling at retail beer, wine, or liquor shall post in every location for which he has obtained a license or permit a sign with the following words printed thereon: `The possession of beer, wine, or liquor, by anyone under twenty-one years of age, is a criminal offense under the laws of this State, and it is also unlawful for any person to knowingly give false information concerning his age for the purpose of purchasing beer, wine, or liquor'. The department shall prescribe by regulation the size of the lettering and the location of the sign on the seller's premises.
Any retail seller of beer, wine, or liquor who fails to display the sign required by the provisions of this section is guilty of a misdemeanor and, upon conviction, must be fined not more than one hundred dollars or imprisoned for not more than thirty days."
Regulations remain effective
SECTION 1604. All regulations promulgated by the Alcoholic Beverage Control Commission as of the effective date of this act remain in force until they are modified or rescinded by the South Carolina Department of Revenue and Taxation or the South Carolina Law Enforcement Division.
Rights and liabilities saved
SECTION 1605. All proceedings pending and all rights and liabilities existing, acquired, or incurred at the time this act takes effect are saved and are transferred to the South Carolina Department of Revenue and Taxation or the South Carolina Law Enforcement Division, as appropriate under the provisions of this act.
References revised
SECTION 1606. Section 62-3-203 of the 1976 Code is amended to read:
"Section 62-3-203. (a) Whether the proceedings are formal or informal, persons who are not disqualified have priority for appointment in the following order:
(1) the person with priority as determined by a probated will including a person nominated by a power conferred in a will;
(2) the surviving spouse of the decedent who is a devisee of the decedent;
(3) other devisees of the decedent;
(4) the surviving spouse of the decedent;
(5) other heirs of the decedent regardless of whether the decedent died intestate and determined as if the decedent died intestate (for the purposes of determining priority under this item, any heirs who could have qualified under items (1), (2), (3), and (4) of subsection (a) are treated as having predeceased the decedent);
(6) forty-five days after the death of the decedent, any creditor;
(7) four months after the death of the decedent, upon application by the South Carolina Department of Revenue and Taxation, any person suitable to the court. Any person with priority may nominate another, who shall have the same priority as the person making the nomination.
(b) An objection to an appointment can be made only in formal proceedings. In case of objection the priorities stated in (a) apply except that:
(1) if the estate appears to be more than adequate to meet exemptions and costs of administration but inadequate to discharge anticipated unsecured claims, the court, on petition of creditors, may appoint any qualified person;
(2) in case of objection to appointment of a person other than one whose priority is determined by will by an heir or devisee appearing to have a substantial interest in the estate, the court may appoint a person who is acceptable to heirs and devisees whose interests in the estate appear to be worth in total more than half of the probable distributable value or, in default of this accord, any suitable person.
(c) Conservators of the estates of protected persons or, if there is no conservator, any guardian except a guardian ad litem of a minor or incapacitated person may exercise the same right to be appointed as personal representative, to object to another's appointment, or to participate in determining the preference of a majority in interest of the heirs and devisees that the protected person or ward would have if qualified for appointment.
(d) Appointment of one who does not have priority, including priority resulting from renunciation or waiver, may be made only in formal proceedings. Before appointing one without priority, the court must determine that those having priority, although given notice of the proceedings, have failed to request appointment or to nominate another for appointment, and that administration is necessary.
(e) No person is qualified to serve as a personal representative who is:
(1) under the age of eighteen;
(2) a person whom the court finds unsuitable in formal proceedings;
(3) with respect to the estate of any person domiciled in this State at the time of his death, a corporation created by another state of the United States or by any foreign state, kingdom or government, or a corporation created under the laws of the United States and not having a business in this State, or an officer, employee, or agent of such foreign corporation, whether the officer, employee, or agent is a resident or a nonresident of this State, if such officer, employee, or agent is acting as personal representative on behalf of such corporation.
(f) A personal representative appointed by a court of the decedent's domicile has priority over all other persons except where the decedent's will nominates different persons to be personal representatives in this State and in the state of domicile. The domiciliary personal representative may nominate another, who shall have the same priority as the domiciliary personal representative.
(g) This section governs priority for appointment of a successor personal representative but does not apply to the selection of a special administrator.
(h) If it comes to the knowledge of a probate judge that any person within his jurisdiction has died leaving an estate upon which no application has been made for appointment or no personal representative appointed or no will offered for probate or appointment granted, he must, immediately after the lapse of four months from the death of such person, notify the South Carolina Department of Revenue and Taxation thereof together with his opinion as to whether or not any part of the estate is likely to be taxable."
Reference revised
SECTION 1607. Section 62-3-301(a)(1)(vii) of the 1976 Code is amended to read:
"(vii) such further information as may be prescribed by the South Carolina Department of Revenue and Taxation pursuant to Sections 12-15-510 and 12-15-540 of the 1976 Code."
References revised
SECTION 1608. Section 62-3-704(f) of the 1976 Code is amended to read:
"(f) If a personal representative or trustee neglects or refuses to comply with any provision of Section 62-3-706 he is liable to a penalty of one thousand dollars for each separate failure or neglect and the official bond of the personal representative or trustee is liable therefor. This penalty must be recovered by the South Carolina Department of Revenue and Taxation for the use of the State and an action for the recovery thereof may be brought by the Department of Revenue and Taxation in any court of competent jurisdiction and, upon collection, must be paid into the state treasury. But the department, upon good cause shown, may, in its discretion, excuse the penalty or any part thereof. The probate court, after a hearing and any notice the court may require, may remove the personal representative and appoint another personal representative."
Reference revised
SECTION 1609. Section 62-3-706(1) of the 1976 Code is amended to read:
"(1) prepare an inventory of property owned by the decedent at the time of his death, together with such other information as may be required by the South Carolina Department of Revenue and Taxation, listing it with reasonable detail, and indicating as to each listed item, its fair market value as of the date of the decedent's death, and the type and amount of any encumbrance that may exist with reference to any item;"
Reference revised
SECTION 1610. Section 62-3-1002 of the 1976 Code is amended to read:
"Section 62-3-1002. No final account of a fiduciary shall be allowed by the probate court unless such account shows, and the judge of such court finds, that all taxes imposed by the provisions of Chapter 7 of Title 12 upon such fiduciary, which have become payable, have been paid, and that all taxes which may become due are secured by bond, deposit, or otherwise. The certificate of the South Carolina Department of Revenue and Taxation and the receipt for the amount of the tax therein certified shall be conclusive as to the payment of the tax to the extent of such certificate."
References revised
SECTION 1611. Section 62-5-105 of the 1976 Code is amended to read:
"Section 62-5-105. If any patient of a state mental health facility has no legally appointed conservator, the Director of the Department of Mental Health or his designee may receive and accept for the use and benefit of any such patient any sum of money, not in excess of the sum of ten thousand dollars in any one calendar year, which may be due such patient or trainee by inheritance, gift, pension, or otherwise. The director or his designee may act as conservator for any such patient and his endorsement or receipt shall discharge the obligor for such sum so received. Upon receipt of any such fund the director or his designee shall use it for the proper maintenance, use, and benefit of such patient or as much thereof as may be necessary for such purposes. In the event any such patient should die leaving an unexpended balance of any such funds in the hands of the director or his designee, he shall apply such balance first to the funeral expenses of such patient or trainee, and any balance remaining shall be held by the director or his designee for a period of six months, and if he is not within such period, contacted by the personal representative of such deceased patient, the balance in the personal fund account shall be applied to the maintenance and medical care account of the deceased patient. Any further balance shall be paid to the judge of probate of the county from which the patient or trainee was admitted for distribution according to law."
Not affect
SECTION 1612. Nothing in this act shall affect the independent status or location of the South Carolina Protection and Advocacy System for the Handicapped established pursuant to Article 5, Chapter 33 of Title 43.
Transition provisions
SECTION 1613. (A) Where the provisions of this act transfer particular state agencies, departments, boards, commissions, committees or entities, or sections, divisions or portions thereof (transferring departments), to another state agency, department, division or entity or make them a part of another department or division (receiving departments), the employees, authorized appropriations, bonded indebtedness if applicable, and real and personal property of the transferring department are also transferred to and become part of the receiving department or division unless otherwise specifically provided. All classified or unclassified personnel of the affected agency, department, board, commission, committee, entity, section, division or position employed by these transferring departments on the effective date of this act, either by contract or by employment at will, shall become employees of the receiving department or division, with the same compensation, classification, and grade level, as applicable. The Budget and Control Board shall cause all necessary actions to be taken to accomplish this transfer and shall in consultation with the agency head of the transferring and receiving agencies prescribe the manner in which the transfer provided for in this section shall be accomplished. The boards' action in facilitating the provisions of this section are ministerial in nature and shall not be construed as an approval process over any of the transfers.
(B) Where an agency, department, entity or official is transferred to or consolidated with another agency, department, division, entity or official, regulations promulgated by that transferred agency, department, entity or official under the authority of former provisions of law pertaining to it are continued and are considered to be promulgated under the authority of present provisions of law pertaining to it.
(C) References to the names of agencies, departments, entities or public officials changed by this act, to their duties or functions herein devolved upon other agencies, departments, entities or officials, or to provisions of law consolidated with or transferred to other parts of the 1976 Code are considered to be and must be construed to mean appropriate references.
(D) Employees or personnel of agencies, departments, entities or public officials, or sections, divisions or portions thereof, transferred to or made a part of another agency, department, division, or official pursuant to the terms of this act shall continue to occupy the same office locations and facilities which they now occupy unless or until otherwise changed by appropriate action and authorization. The rent and physical plant operating costs of these offices and facilities, if any, shall continue to be paid by the transferring agency, department, entity or official formerly employing these personnel until otherwise provided by the General Assembly. The records and files of the agencies which formerly employed these personnel shall continue to remain the property of these transferring agencies, except that these personnel shall have complete access to these records and files in the performance of their duties as new employees of the receiving agency.
(E) Unless otherwise provided herein or by law, all fines, fees, forfeitures, or revenues imposed or levied by agencies, personnel, or portions thereof, so transferred to other agencies or departments must continue to be used and expended for those purposes provided prior to the effective date of this act. If a portion of these fines, fees, forfeitures, or revenues were required to be used for the support, benefit, or expense of personnel transferred, such funds must continue to be used for these purposes.
(F) The Budget and Control Board, in consultation with the appropriate standing committees of the General Assembly as designated by the President Pro Tempore of the Senate and the Speaker of the House of Representatives and the other affected agencies, shall prescribe the manner in which the provisions of subsections (A), (D), and (E) must be implemented where agreement between the affected agencies cannot be obtained.
(G) The Budget and Control Board shall provide for a consolidated employee employment application process to be used by all state agencies or departments including those affected by the provisions of this act. This consolidated employment application process for state government shall be implemented on January 1, 1994.
(H) Where the functions of former agencies have been devolved on more than one department or departmental division, the general support services of the former agency must be transferred to the restructured departments or departmental divisions as provided by the General Assembly in the annual general appropriations act.
(I) The membership of the Legislative Council shall cause the changes to the 1976 Code as contained in this act to be printed in replacement volumes or in cumulative supplements as they consider practical and economical.
(J) On or before January 15, 1994, the Code Commissioner shall prepare and deliver a report to the Speaker of the House of Representatives and the President Pro Tempore of the Senate of all Code references and cross-references which he considers in need of correction or modification insofar as the 1976 Code has been affected by this act.
Conflicting enactments
SECTION 1614. Notwithstanding any permanent or temporary provision of law, any enactment, or portion thereof, of the General Assembly in 1993 in conflict with any provision of this act shall be suspended as to its force and effect until March 1, 1994. Where there is no conflict the provisions of any other enactments shall supersede the provisions of this act. For the purposes of this section, `conflict' shall not include:
(1) where provisions of the Code of Laws of 1976, as amended, are repeated herein so as to incorporate only changes in the names of agencies, divisions or departments, except so far as such change in name conflicts with another enactment or a portion of another enactment, or
(2) where provisions of the Code of Laws of 1976, as amended, are repeated herein so as to incorporate only changes in the governance or structure of an agency, division or department except so far as such goverance or structure is in conflict with another enactment or some portion of another enactment.
Savings clause
SECTION 1615. (A) The repeal or amendment by this act of any law, whether temporary or permanent or civil or criminal, does not affect pending actions, rights, duties, or liabilities founded thereon, or alter, discharge, release or extinguish any penalty, forfeiture, or liability incurred under the repealed or amended law, unless the repealed or amended provision shall so expressly provide. After the effective date of this act, all laws repealed or amended by this act must be taken and treated as remaining in full force and effect for the purpose of sustaining any pending or vested right, civil action, special proceeding, criminal prosecution, or appeal existing as of the effective date of this act, and for the enforcement of rights, duties, penalties, forfeitures, and liabilities as they stood under the repealed or amended laws. Any department to which are transferred the powers, duties, and functions of any agency relating to the pending proceeding shall be substituted as a party in interest.
(B) Any statute enacted and any rule or regulation made in respect to any agency or function transferred to, or consolidated, coordinated or combined with any other agency or function under the provisions of this act before the effective date of such transfer, consolidation, coordination or combination shall, except to the extent repealed, modified, superseded or made inapplicable by or under the authority of law, have the same effect as if such transfer, consolidation, coordination or combination had not been made. But when any such statute, rule or regulation has vested functions in the agency from which the transfer is made under the act, such functions shall, insofar as they are to be exercised after the transfer, be considered as vested in the agency to which the transfer is made under the act.
(C) No suit, action or other proceeding lawfully commenced by or against any agency or officer of the State in its or his official capacity or in relation to the discharge of its or his official duties shall abate by reason of the taking effect of this act but the court may, on motion or supplemental complaint filed at any time within twelve months after this act takes effect, showing a necessity for a survival of such suit, action or other proceeding to obtain an adjudication of the questions involved, allow the same to be maintained by or against the successor of the agency or officer under the act or, if there be no such successor, against such agency or officer as the Governor shall designate.
Severability clause
SECTION 1616. If any section, subsection, paragraph, subparagraph, sentence, clause, phrase, or word of this act is for any reason held to be unconstitutional or invalid, such holding shall not affect the constitutionality or validity of the remaining portions of this act, the General Assembly hereby declaring that it would have passed this act, and each and every section, subsection, paragraph, subparagraph, sentence, clause, phrase, and word thereof, irrespective of the fact that any one or more other sections, subsections, paragraphs, subparagraphs, sentences, clauses, phrases, or words hereof may be declared to be unconstitutional, invalid, or otherwise ineffective.
Repeal
SECTION 1617. (A) Articles 1 and 3 of Chapter 23 of Title 23, Chapter 3 of Title 13, Articles 3, 5, 9, and 11 of Chapter 3 of Title 57, Chapter 5 of Title 23, Chapter 9 of Title 13, Chapter 45 of Title 41, Chapter 19 of Title 58 and Sections 1-11-75, 2-63-10, 8-1-90, 12-7-775, 12-27-1280, 12-27-1295, 12-27-1300, 12-27-1310, 20-7-2308, 20-7-2309, 20-7-2327, 20-7-2335, 20-7-2337, 20-7-2365, 20-7-2950, 20-7-3140, 20-7-3150, 20-7-3160, 20-7-3250, 20-7-5620, 20-7-5680, 20-7-5810, 20-7-5820, 20-7-5830, 20-7-5840, 20-7-5850, 20-7-5860, 23-3-60, 23-8-10, 23-8-20, 23-8-30, 23-9-510, 23-9-520, 23-9-530, 23-43-50, 24-1-50, 24-1-60, 24-1-70, 24-1-80, 24-3-100, 24-21-20, 24-21-210, 42-9-380, 43-1-20, 43-1-25, 43-1-30, 43-1-40, 43-21-30, 44-96-70, 55-5-30, 55-5-40, 56-1-1400, 57-3-620, 57-11-40, 57-11-230, 57-11-260, 57-11-310, 57-11-400, 58-3-21, 58-3-22, 58-3-23, and 58-3-25 of the l976 Code of Laws are repealed effective July 1, 1993.
(B) Sections 40-29-60 and 41-3-20 of the 1976 Code of Laws are repealed effective February 1, 1994.
(C) Chapter 5 of Title 13 and Sections 24-26-10, 24-26-20, 24-26-30, 24-26-40, 24-26-50, 27-2-80, 27-2-90, 27-2-100, 44-1-10, 44-1-60, 48-9-210, 48-9-220, 48-9-240 and 48-9-250 of the 1976 Code of Laws are repealed effective July 1, 1994.
(D) Section 1-20-50(C)(1) of the 1976 Code of Laws is repealed effective February 1, 1995.
(E) Sections 38-3-20, 38-3-30, 38-3-50, 38-3-90, 44-6-20, 44-6-60, 44-6-65, 44-6-110, 44-6-120 and 44-6-130 of the 1976 Code of Laws are repealed effective July 1, 1995.
(F) The provisions of Part II, Section 6, as contained in Act 164 of 1993 are repealed effective July 1, 1993.
Time effective dates
SECTION 1618. (A) Article 1 of Chapter 1 of Title 13, Chapter 1 of Title 55, Chapter 1 of Title 61, Chapter 3 of Title 43, Chapter 3 of Title 61, Article 5 of Chapter 1 of Title 31, Chapter 5 of Title 55, Chapter 5 of Title 61, Article 7 of Chapter 1 of Title 31, Chapter 7 of Title 61, Chapter 9 of Title 55, Chapter 9 of Title 61, Chapter 11 of Title 25, and Sections 1-3-210, 1-3-220, 1-3-240, 1-3-250, 1-15-10, 1-20-50(c), 1-20-50(B)(5), 1-23-120(G)(3), 1-23-310, 1-23-320, 1-25-60(A), 2-7-71, 2-7-105, 2-13-190, 2-13-240, 2-15-61, 2-17-15, 2-19-30, 2-19-70, 2-67-10, 2-67-30, 4-9-155, 4-10-25, 4-10-60, 4-10-80, 4-10-90, 4-29-67, 5-3-90, 5-3-110, 5-3-300, 5-7-110, 5-27-510, 7-13-710, 8-1-80, 8-1-100, 8-11-10, 8-11-945, 8-13-910, 8-17-370, 8-21-310(20)(A), 8-21-770(B), 8-21-780, 8-21-790, 9-1-60, 9-11-180, 10-7-10, 10-11-80, 11-9-820, 11-9-825, 11-11-10, 11-17-10(a), 11-35-45(B), 11-35-710, 11-35-1520(12), 11-35-5230(B)(4), 11-35-5250(2), 11-35-5270, 12-2-10, 12-4-10, 12-4-30, 12-4-335, 12-4-350, 12-4-370, 12-7-455, 12-7-460, 12-7-1220, 12-7-1250, 12-7-1590, 12-7-2010, 12-7-2230, 12-7-2590, 12-7-2610, 12-9-130, 12-9-310, 12-9-420, 12-9-630, 12-9-860, 12-13-70, 12-16-1110, 12-19-20, 12-19-60, 12-19-100, 12-21-100, 12-21-320, 12-21-470, 12-21-660, 12-21-780, 12-21-820, 12-21-1060, 12-21-1110, 12-21-1320, 12-21-1540, 12-21-1550, 12-21-1570, 12-21-1580, 12-21-1590, 12-21-1610, 12-21-1840, 12-21-2420, 12-21-2719, 12-21-2720, 12-21-2726, 12-21-3320, 12-21-3441, 12-21-3590, 12-21-3600, 12-23-815, 12-23-820, 12-23-830, 12-27-270, 12-27-380, 12-27-390, 12-27-405, 12-27-430, 12-27-1210, 12-27-1220, 12-27-1230, 12-27-1240, 12-27-1250, 12-27-1260, 12-27-1290, 12-27-1320, 12-27-1510, 12-29-20, 12-29-110, 12-29-150, 12-31-20, 12-31-50, 12-31-210, 12-31-230, 12-31-240, 12-31-250, 12-31-260, 12-31-270, 12-31-280, 12-31-420, 12-31-610, 12-31-620, 12-31-640, 12-33-70, 12-33-420, 12-33-480, 12-33-485, 12-33-620, 12-33-630, 12-35-560, 12-36-1370, 12-36-1710, 12-36-2120, 12-36-2660, 12-37-220, 12-37-380, 12-37-970, 12-37-975, 12-37-1120, 12-37-1130, 12-37-1410, 12-37-1420, 12-37-1610, 12-37-2110, 12-37-2410, 12-37-2650, 12-37-2660, 12-37-2670, 12-37-2680, 12-37-2700, 12-37-2725, 12-37-2727, 12-39-180, 12-43-210, 12-43-220, 12-43-280, 12-43-300, 12-43-305, 12-43-320, 12-43-335, 12-45-70, 12-47-10, 12-47-60, 12-49-90, 12-49-271, 12-49-290, 12-51-135, 12-53-10, 12-53-210, 12-53-220, 12-54-10, 12-54-230, 12-54-240, 12-54-250, 12-54-260, 12-54-420, 12-54-430, 12-54-720, 13-7-20, 13-7-70(4), 13-7-160, 13-11-80, 13-19-160, 14-7-130, 14-23-1140, 15-9-210(b), 15-9-350, 15-9-360, 15-9-370, 15-9-380, 15-9-390, 15-9-410, 16-3-1110, 16-3-1120, 16-11-340, 19-5-30, 20-7-121, 20-7-128, 20-7-410, 20-7-600, 20-7-630, 20-7-655(B), 20-7-770, 20-7-780, 20-7-1330, 20-7-1490, 20-7-1645, 20-7-2095, 20-7-2115, 20-7-2125, 20-7-2155, 20-7-2170, 20-7-2175, 20-7-2180, 20-7-2185, 20-7-2190, 20-7-2195, 20-7-2200, 20-7-2203, 20-7-2205, 20-7-2260, 20-7-2310, 20-7-2379, 20-7-2700, 20-7-2760, 20-7-2830, 20-7-2880, 20-7-2930, 20-7-2940, 20-7-3050, 20-7-3100, 20-7-3110, 20-7-3120, 20-7-3130, 20-7-3170, 20-7-3180, 20-7-3190, 20-7-3200, 20-7-3210, 20-7-3230, 20-7-3235, 20-7-3240, 20-7-3270, 20-7-3280, 20-7-3300, 20-7-3310, 20-7-3350, 20-7-3360, 20-7-5420, 20-7-5610, 20-7-5630, 20-7-5660, 20-7-5670, 22-1-30, 23-3-10, 23-3-20, 23-3-160, 23-25-20, 23-25-40, 23-31-140, 23-33-20, 23-35-70, 23-41-30(f), 23-41-30(c), 24-1-40, 24-1-90, 24-1-100, 24-1-110, 24-1-120, 24-1-130, 24-1-140, 24-1-145, 24-1-150, 24-1-160, 24-1-170, 24-1-200, 24-1-210, 24-1-220, 24-1-230, 24-1-250, 24-1-260, 24-1-270, 24-3-20, 24-3-30, 24-3-40, 24-3-60, 24-3-70, 24-3-80, 24-3-90, 24-3-110, 24-3-130(A), 24-3-131, 24-3-140, 24-3-150, 24-3-160, 24-3-170, 24-3-180, 24-3-190, 24-3-200, 24-3-210, 24-3-315, 24-3-320, 24-3-330, 24-3-340, 24-3-360, 24-3-380, 24-3-390, 24-3-400, 24-3-410(C), 24-3-510, 24-3-520, 24-3-530, 24-3-540, 24-3-550, 24-3-710, 24-3-720, 24-3-730, 24-3-740, 24-3-750, 24-3-760, 24-3-920, 24-3-950, 24-3-960, 24-7-90, 24-9-10, 24-9-20, 24-9-30, 24-11-30, 24-13-210(c), 24-13-230(A), 24-13-270, 24-13-640, 24-13-710, 24-13-940, 24-13-1310(3), 24-13-1320, 24-13-1330(B) and (C), 24-13-1340(B), 24-13-1520(1) and (2), 24-13-1590, 24-19-10(C), 24-19-20, 24-19-30, 24-19-40, 24-19-60, 24-19-80, 24-19-90, 24-19-100, 24-19-110, 24-19-160, 24-21-10, 24-21-11, 24-21-12, 24-21-13, 24-21-60, 24-21-70, 24-21-220, 24-21-221, 24-21-230, 24-21-250, 24-21-260, 24-21-280, 24-21-290, 24-21-485, 24-21-620, 24-21-645, 24-21-650, 24-21-930, 24-22-20(a), 24-22-160, 24-23-40, 24-23-110, 24-23-115, 24-23-220, 24-25-40, 24-25-50, 24-25-70, 27-18-20(1), 30-4-40(a)(10), 31-1-30, 31-1-120, 31-1-140, 31-1-150, 31-1-160, 31-1-200, 31-1-210, 31-1-220, 31-3-20(1), 31-3-340, 31-3-370, 31-3-390, 31-3-750, 31-17-340, 31-17-360, 31-17-370, 31-17-510(g), 33-1-210, 33-14-200, 33-14-220(a), 33-14-400, 33-15-300(a)(1) and (b), 33-15-310(c), 33-15-330(A)(4), 33-16-101(e)(7), 33-31-60, 33-37-250(10), 36-9-307, 36-9-319, 38-1-10, 38-77-113, 38-77-1120(a), 39-9-230, 39-15-170, 39-41-40, 39-43-160, 39-57-20, 41-41-40, 41-44-60, 41-44-80, 42-1-490, 42-1-500, 42-7-10, 42-7-20, 42-7-30, 42-7-40, 42-7-70, 42-7-75, 42-7-90, 42-7-200, 42-7-310, 43-1-10, 43-1-50, 43-1-60, 43-1-70, 43-1-170, 43-1-190, 43-1-200, 43-1-210, 43-5-10, 43-5-75, 43-5-120, 43-5-150, 43-5-170, 43-5-220, 43-5-550(f), 43-5-550(h)(5), 43-5-620, 43-21-10, 43-21-20, 43-21-40, 43-21-50, 43-21-60, 43-21-70, 43-21-80, 43-21-100, 43-21-120, 43-21-130, 43-21-150, 43-21-160, 43-21-170, 43-21-180, 44-9-20, 44-9-30, 44-9-40, 44-9-50, 44-9-60, 44-9-160, 44-15-60, 44-15-80, 44-20-10, 44-20-20, 44-20-30, 44-20-210, 44-20-220, 44-20-230, 44-20-240, 44-20-250, 44-20-260, 44-20-270, 44-20-280, 44-20-290, 44-20-300, 44-20-310, 44-20-320, 44-20-330, 44-20-340, 44-20-350, 44-20-360, 44-20-370, 44-20-375, 44-20-378, 44-20-380, 44-20-385, 44-20-390, 44-20-400, 44-20-410, 44-20-420, 44-20-430, 44-20-440, 44-20-450, 44-20-460, 44-20-470, 44-20-480, 44-20-490, 44-20-500, 44-20-510, 44-20-710, 44-20-720, 44-20-730, 44-20-740, 44-20-750, 44-20-760, 44-20-770, 44-20-780, 44-20-790, 44-20-800, 44-20-900, 44-20-1000, 44-20-1110, 44-20-1120, 44-20-1130, 44-20-1140, 44-20-1150, 44-20-1160, 44-20-1170, 44-22-10, 44-22-50, 44-22-100, 44-22-110, 44-23-10, 44-23-210, 44-23-220, 44-23-410, 44-25-30, 44-26-10, 44-26-70, 44-26-80, 44-26-120, 44-26-170, 44-28-20, 44-28-40, 44-28-60, 44-28-80, 44-28-360, 44-28-370, 44-36-20, 44-38-30, 44-38-310, 44-38-320, 44-38-330, 44-38-340, 44-38-350, 44-38-360, 44-38-370, 44-38-380, 44-38-390, 44-43-30, 44-43-50, 44-43-70, 44-49-10, 44-49-20, 44-49-30, 44-49-40, 44-49-50, 44-49-60, 44-49-70, 44-49-80, 44-52-10, 44-53-710, 44-53-740, 44-63-110, 44-96-60, 44-96-120, 44-96-140, 44-96-160, 44-96-170(L) and (M), 44-96-180, 44-96-200, 44-96-220, 44-107-80, 46-13-60(2)(c), 48-30-30(A)(5), 48-30-50, 48-30-70, 48-30-80, 48-47-175(B), 49-29-210, Article 1, Chapter 1, Title 51, 51-11-10, 51-11-15, 51-11-20, 51-11-30, 51-11-40, 51-11-50, 51-11-60, 51-19-10, 55-8-10(a), 55-8-50(a)(2), 55-8-170, 55-11-10(5), 55-11-520, 55-15-10(f), 56-1-10, 56-1-80, 56-1-90, 56-1-135, 56-1-145, 56-1-220, 56-1-225, 56-1-270, 56-1-280, 56-1-290, 56-1-300, 56-1-310, 56-1-320, 56-1-330, 56-1-340, 56-1-350, 56-1-360, 56-1-365, 56-1-370, 56-1-380, 56-1-390, 56-1-400, 56-1-410, 56-1-420, 56-1-460, 56-1-463, 56-1-475, 56-1-510, 56-1-520, 56-1-530, 56-1-540, 56-1-550, 56-1-630, 56-1-740, 56-1-745, 56-1-746, 56-1-770, 56-1-790, 56-1-800, 56-1-810, 56-1-820, 56-1-830, 56-1-840, 56-1-850, 56-1-1020, 56-1-1030, 56-1-1090, 56-1-1100, 56-1-1120, 56-1-1130, 56-1-1320, 56-1-1330, 56-1-1340, 56-1-1730, 56-1-1760, 56-1-2050, 56-1-2100, 56-1-2110, 56-1-2130, 56-1-2140, 56-1-3350, 56-1-3360, 56-1-3370, 56-1-3380, 56-1-3390, 56-1-3400, 56-3-20, 56-3-115, 56-3-250, 56-3-255, 56-3-360, 56-3-650, 56-3-790, 56-3-860, 56-3-910, 56-3-1150, 56-3-1160, 56-3-1330, 56-3-1340, 56-3-1710, 56-3-1750, 56-3-1850, 56-3-1910, 56-3-1950, 56-3-1960, 56-3-1971, 56-3-1972, 56-3-1973, 56-3-1974, 56-3-2010, 56-3-2020, 56-3-2060, 56-3-2150, 56-3-2210, 56-3-2230, 56-3-2250, 56-3-2320, 56-3-2600, 56-3-2710, 56-3-2810, 56-3-3310, 56-3-3710, 56-3-4310, 56-3-4910, 56-3-5920, 56-5-60, 56-5-370, 56-5-910, 56-5-920, 56-5-930, 56-5-935, 56-5-1520, 56-5-1530, 56-5-1540, 56-5-1560, 56-5-1570, 56-5-1890, 56-5-1910, 56-5-1980, 56-5-2120, 56-5-2330, 56-5-2540, 56-5-2550, 56-5-2585, 56-5-2715, 56-5-2730, 56-5-2945, 56-5-2950, 56-5-2990, 56-5-3660, 56-5-3670, 56-5-3680, 56-5-3690, 56-5-3750, 56-5-3880, 56-5-4040, 56-5-4060, 56-5-4070, 56-5-4075, 56-5-4095, 56-5-4140, 56-5-4145, 56-5-4150, 56-5-4160(E), 56-5-4170, 56-5-4175, 56-5-4180, 56-5-4185, 56-5-4190, 56-5-4200, 56-5-4205, 56-5-4210, 56-5-4220, 56-5-4720, 56-5-4880, 56-5-4940, 56-5-5010, 56-5-5320, 56-5-5330, 56-5-5340, 56-5-5350, 56-5-5360, 56-5-5400, 56-5-5410, 56-5-5420, 56-5-5430, 56-5-5670, 56-5-5810, 56-5-5830, 56-5-5850, 56-5-5860, 56-5-5870, 56-5-6140, 56-7-10, 56-7-20, 56-7-30, 56-7-50, 56-9-20, 56-10-10, 56-10-20, 56-10-40, 56-10-45, 56-10-210, 56-10-220, 56-10-240, 56-10-245, 56-10-280, 56-10-290, 56-15-10, 56-15-50, 56-15-320, 56-16-10, 56-16-20, 56-16-110, 56-16-150, 56-19-10, 56-19-80, 56-19-390, 56-19-425, 56-23-10, 56-23-40, 56-23-70, 56-23-85, 56-25-10, 56-27-10, 56-29-20, 56-29-50, 56-31-50, 57-1-10, 57-1-20, 57-1-30, 57-1-40, 57-1-45, 57-1-50, 57-1-60, 57-1-70, 57-1-80, 57-1-90, 57-1-100, 57-1-110, 57-1-140, 57-3-10, 57-3-20, 57-3-30, 57-3-35, 57-3-40, 57-3-50, 57-3-610, 57-3-620, 57-3-630, 57-3-640, 57-3-650, 57-3-660, 57-3-670, 57-3-680, 57-3-690, 57-3-700, 57-3-710, 57-3-720, 57-3-730, 57-3-750, 57-3-760, 57-3-770, 57-5-10, 57-5-20, 57-5-30, 57-5-40, 57-5-50, 57-5-60, 57-5-70, 57-5-80, 57-5-90, 57-5-100, 57-5-110, 57-5-120, 57-5-130, 57-5-140, 57-5-150, 57-5-160, 57-5-170, 57-5-180, 57-5-190, 57-5-310, 57-5-320, 57-5-330, 57-5-340, 57-5-350, 57-5-370, 57-5-380, 57-5-540, 57-5-550, 57-5-570, 57-5-580, 57-5-590, 57-5-600, 57-5-710, 57-5-720, 57-5-760, 57-5-1010, 57-5-1320, 57-5-1350, 57-5-1450, 57-5-1610, 57-5-1620, 57-5-1630, 57-5-1660, 57-11-210, 57-11-220, 57-11-240, 57-11-250, 57-11-270, 57-11-280, 57-11-290, 57-11-300, 57-11-320, 57-11-330, 57-11-340, 57-11-360, 57-11-370, 57-11-380, 57-11-390, 57-13-10, 57-13-40, 57-13-130, 57-15-140, 57-23-10, 57-23-20, 57-23-110, 57-23-120, 57-23-210, 57-23-220, 57-23-300, 57-23-310, 57-23-350, 57-23-360, 57-23-400, 57-23-410, 57-23-420, 57-23-500, 57-23-510, 57-23-520, 57-23-600, 57-23-610, 57-23-620, 57-23-700, 57-23-710, 57-23-720, 57-25-110, 57-25-120, 57-25-130, 57-25-140, 57-25-150, 57-25-155, 57-25-160, 57-25-170, 57-25-180, 57-25-185, 57-25-190, 57-25-195, 57-25-200, 57-25-210, 57-25-220, 57-25-430, 57-25-440, 57-25-460, 57-25-480, 57-25-490, 57-25-640, 57-25-650, 57-25-670, 57-25-690, 57-25-700, 57-27-20, 57-27-90, 58-1-30, 58-1-40, 58-3-20, 58-3-24, 58-3-100, 58-12-130, 58-15-1625, 58-15-1650, 58-15-1680, 58-15-1910, 58-15-1920, 58-15-1930, 58-15-1940, 58-15-1950, 58-15-2120, 58-15-2130, 58-17-1450, 58-23-1220, 58-25-80, 58-27-690, 58-35-50, 59-20-20(3), 59-53-10, 59-53-420(14), 59-54-40, 59-67-20, 59-67-260, 59-67-540, 59-67-570, 59-117-90, 59-137-50(B), 61-13-295, 61-13-410, 61-13-470, 61-13-500, 61-13-510, 61-13-540, 61-13-570, 61-13-620, 61-13-630, 61-13-750, 61-13-810, 61-13-835, 61-13-836, 61-13-875, 61-13-885, 62-3-203, 62-3-301, 62-3-704, 62-3-706, 62-3-1002, and 62-5-105, as amended by this act, are effective July 1, 1993.
(B) Chapter 28 of Title 40, Chapter 65 of Title 40, and Sections 6-9-60, 10-5-230, 10-5-240, 10-5-270, 10-5-300, 10-5-320, 10-9-320, 10-11-50, 23-9-60, 23-9-65, 23-9-70, 23-9-155, 23-9-210, 23-10-10, 23-35-140, 23-36-160, 23-43-20, 23-43-70, 23-43-110, 23-43-140, 40-1-140, 40-1-310, 40-1-350, 40-3-40, 40-3-120, 40-3-135, 40-3-140, 40-6-40, 40-6-45, 40-6-180, 40-6-220, 40-7-60, 40-7-270, 40-9-30, 40-9-31, 40-9-36, 40-9-95, 40-11-40, 40-11-60, 40-11-90, 40-11-150, 40-11-180, 40-11-190, 40-11-300, 40-11-320, 40-11-350, 40-13-60, 40-13-80, 40-13-260, 40-13-300, 40-15-40, 40-15-50, 40-15-185, 40-15-200, 40-15-210, 40-15-215, 40-15-370, 40-15-380, 40-19-10, 40-19-70, 40-19-80, 40-19-160, 40-19-170, 40-22-150, 40-22-420, 40-22-440, 40-23-40, 40-23-127, 40-29-20, 40-29-50, 40-29-100, 40-29-110, 40-29-160, 40-29-210, 40-33-250, 40-33-931, 40-33-960, 40-35-70, 40-35-135, 40-36-160, 40-37-50, 40-37-230, 40-38-60, 40-38-230, 40-43-135, 40-43-260, 40-43-410, 40-45-260, 40-47-170, 40-47-200, 40-47-210, 40-47-570, 40-47-630, 40-47-660, 40-51-160, 40-55-140, 40-55-160, 40-56-10, 40-56-20, 40-57-170, 40-57-220, 40-59-50, 40-59-60, 40-59-90, 40-59-95, 40-59-130, 40-60-160, 40-60-170, 40-60-210, 40-61-40, 40-61-110, 40-63-10, 40-63-30, 40-63-120, 40-67-100, 40-67-170, 40-69-70, 40-69-150, 40-69-210, 40-69-420, 40-75-40, 40-75-180, 40-77-100, 40-77-110, 40-77-320, 41-1-10, 41-3-10, 41-3-30, 41-3-40, 41-3-50, 41-3-55, 41-3-60, 41-3-70, 41-3-80, 41-3-100, 41-3-110, 41-3-120, 41-3-130, 41-3-140, 41-3-510, 41-3-520, 41-3-530, 41-3-540, 41-15-600, 41-15-610, 41-15-620, 41-18-90, 48-27-70, 48-27-200, 52-7-15, 52-7-20, and 52-7-30, as amended by this act, are effective February 1, 1994.
(C) Sections 23-9-150, 23-9-170, 23-9-180, 23-36-80, 23-43-180, and 54-15-320, as amended by this act, are effective March 1, 1994.
(D) SECTION 344 is effective October 1, 1993.
(E) Chapter 3 of Title 50, Chapter 4 of Title 49, Article 5 of Chapter 9 of Title 48, Chapter 5 of Title 49, Chapter 5 of Title 50, Chapter 6 of Title 49, Article 7 of Chapter 9 of Title 48, Chapter 7 of Title 50, Article 9 of Chapter 9 of Title 48, Chapter 9 of Title 50, Chapter 11 of Title 50, Chapter 11 of Title 49, Chapter 13 of Title 50, Chapter 15 of Title 50, Chapter 16 of Title 50, Chapter 17 of Title 50, Chapter 18 of Title 48, Chapter 19 of Title 50, Chapter 20 of Title 50, Chapter 21 of Title 50, Chapter 21 of Title 49, Chapter 23 of Title 49, Chapter 23 of Title 50, Chapter 25 of Title 49, Chapter 25 of Title 50, Chapter 29 of Title 49, Chapter 39 of Title 48, Chapter 43 of Title 48, and Sections 1-1-110, 1-23-110, 1-23-115, 1-23-130, 1-23-160, 1-23-380, 2-22-20, 3-3-210, 3-5-40, 3-5-50, 3-5-60, 3-5-80, 3-5-100, 3-5-120, 3-5-130, 3-5-140, 3-5-150, 3-5-160, 3-5-170, 3-5-190, 3-5-320, 3-5-330, 3-5-340, 3-5-360, 11-37-200(A), 12-7-1225, 12-7-2415, 15-9-415, 16-23-20(1), 16-27-60, 16-27-80, 23-23-30, 23-28-120, 27-31-100(f), 40-23-20, 44-1-50, 44-1-100, 44-3-110, 44-3-150, 44-29-210, 44-30-10, 44-40-30, 44-53-620, 44-53-630, 44-53-640, 44-53-650, 44-53-660, 44-53-1320, 44-53-1340, 44-53-1360, 44-53-1380, 44-53-1390, 44-53-1430, 44-53-1440, 44-53-1450, 44-53-1470, 44-55-20, 44-55-40, 44-55-45, 44-55-60, 44-55-2320, 44-55-2360, 44-56-20, 44-56-50, 44-56-130, 44-56-840, 44-61-70, 44-63-30, 44-65-80, 44-67-30, 44-67-50, 44-85-30, 44-85-50, 44-93-20, 44-93-50, 44-93-130, 44-96-170(O)(8), 44-96-250, 44-96-280, 46-13-150, 46-51-20, 47-3-310, 47-3-320, 47-3-420, 47-3-510, 47-3-550, 48-1-85(C), 48-1-110, 48-9-30(3), 48-9-40, 48-9-260, 48-9-270, 48-9-280, 48-9-290, 48-9-300, 48-9-310, 48-9-320, 48-9-1210, 48-9-1230, 48-9-1320, 48-9-1810, 48-9-1820, 48-9-1840, 48-9-1850, 48-11-10, 48-11-15, 48-11-90, 48-11-100, 48-11-185(D), 48-11-190(C), 48-11-210(D), Items (1)(4) and (6) of 48-14-20, 48-14-40(F), 48-14-50, 48-14-60, 48-14-70, 48-14-80, 48-14-85, 48-14-90, 48-14-110, 48-14-120, 48-14-130A(7), 48-14-140, 48-14-160, 48-14-170, 48-20-30, 48-20-40(3), 48-20-210, 48-20-270, 48-20-280, 48-45-40, 48-45-80, 48-55-10, 49-1-15, 49-27-10, 49-27-70, 49-27-80, 50-1-10, 50-1-20, 50-1-30, 50-1-40, 50-1-60, 50-1-70, 50-1-80, 50-1-85, 50-1-90, 50-1-95, 50-1-100, 50-1-110, 50-1-120, 50-1-125, 50-1-130, 50-1-135, 50-1-136, 50-1-137, 50-1-140, 50-1-150, 50-1-160, 50-1-170, 50-1-180, 50-1-190, 50-1-200, 50-1-210, 50-1-220, 50-1-230, 50-1-240, 50-1-250, 50-1-260, 50-1-270, 50-18-10(5), 51-3-145, 51-3-160, 51-15-540, 57-5-870 and 58-3-140 as amended by this act, are effective July 1, 1994.
(F) Sections 44-1-20, 44-1-40, and 48-20-110, as amended by this act, are effective February 1, 1995.
(G) Article 1, Chapter 27, Title 38, Article 1, Chapter 79, Title 38, Chapter 3, Title 38, Article 3, Chapter 27, Title 38, Chapter 5, Title 38, Article 5, Chapter 37, Title 38, Article 5 of Chapter 75 of Title 38, Chapter 7 of Title 38, Chapter 9 of Title 38, Article 9 of Chapter 77 of Title 38, Chapter 11 of Title 38, Chapter 13 of Title 38, Article 13 of Chapter 37 of Title 38, Chapter 26 of Title 38, Chapter 29 of Title 38, Chapter 31 of Title 38, Chapter 33 of Title 38, Chapter 39 of Title 38, Chapter 41 of Title 38, Chapter 45 of Title 38, Chapter 47 of Title 38, Chapter 61 of Title 38, Chapter 73 of Title 38, Chapter 81 of Title 38, Chapter 83 of Title 38, Chapter 89 of Title 38, and Sections 2-7-73(A), 2-23-10, 8-13-740(A)(2)(c), 8-13-740(A)(6)(c), 12-23-310, 15-9-270, 15-9-280(c), 15-9-280(a), 15-9-280(d), 15-9-310, 17-13-80, 20-7-2640, 23-9-90, 33-37-460(3)(b), 33-39-460(3)(b), 34-29-160, 37-6-605, 38-1-20, 38-2-10, 38-15-10, 38-15-20, 38-15-30, 38-15-50, 38-17-30, 38-17-50, 38-17-60, 38-17-70, 38-17-90, 38-17-120, 38-17-140, 38-17-150, 38-17-170, 38-19-40, 38-19-50, 38-19-440, 38-19-470, 38-19-480, 38-19-490, 38-19-610, 38-19-640, 38-19-650, 38-19-825, 38-21-10(2), 38-21-20(11), 38-21-30(3), 38-21-50, 38-21-60, 38-21-70, 38-21-90, 38-21-100, 38-21-110, 38-21-120, 38-21-125, 38-21-130, 38-21-140, 38-21-160, 38-21-170, 38-21-190, 38-21-200, 38-21-210, 38-21-220, 38-21-240, 38-21-250, 38-21-260, 38-21-270, 38-21-280, 38-21-290, 38-21-300, 38-21-310, 38-21-320, 38-21-330, 38-21-340, 38-21-350, 38-21-370, 38-23-20, 38-23-40, 38-23-50, 38-23-70, 38-23-80, 38-23-100, 38-25-10, 38-25-110, 38-25-160, 38-25-310, 38-25-510, 38-25-520, 38-25-540, 38-25-550, 38-25-570, 38-27-310, 38-27-320, 38-27-330(a), 38-27-350, 38-27-360, 38-27-370, 38-27-390, 38-27-400, 38-27-410, 38-27-500(e), 38-27-520, 38-27-640, 38-27-660, 38-27-670, 38-27-680, 38-27-910(a), 38-27-920, 38-27-930(b), 38-27-940(a), 38-27-950, 38-35-10, 38-35-40, 38-35-50, 38-37-60, 38-37-220, 38-37-230, 38-37-240, 38-37-250, 38-37-260, 38-37-300, 38-37-710, 38-37-720, 38-37-900, 38-37-910, 38-37-920, 38-37-1310, 38-37-1360, 38-43-20, 38-43-30, 38-43-40, 38-43-70, 38-43-100, 38-43-105, 38-43-106, 38-43-110, 38-43-130, 38-43-230, 38-43-250, 38-43-260, 38-44-30, 38-44-40(4), 38-44-50, 38-44-70, 38-44-80, 38-46-20(10)(c), 38-46-30, 38-46-60, 38-46-70, 38-46-90, 38-46-100, 38-46-110, 38-46-120, 38-49-20, 38-51-20, 38-51-30, 38-51-60, 38-53-10(11), 38-53-20, 38-53-80, 38-53-90, 38-53-100, 38-53-110, 38-53-130, 38-53-140, 38-53-150, 38-53-160, 38-53-170(f), 38-53-200, 38-53-210, 38-53-220, 38-53-230, 38-53-310, 38-53-320, 38-55-20, 38-55-40, 38-55-60, 38-55-80, 38-55-120, 38-55-140, 38-55-180, 38-57-150(2), 38-57-200, 38-57-210, 38-57-220, 38-57-230, 38-57-240, 38-57-250, 38-57-260, 38-57-270, 38-57-280, 38-57-290, 38-57-300, 38-57-310, 38-59-30, 38-63-220(n), 38-63-250(a), 38-63-520, 38-63-580, 38-63-590, 38-63-600(8) and (11), 38-63-610, 38-63-650, 38-65-60, 38-65-210, 38-67-10(c),(d), and (f), 38-67-30, 38-67-40, 38-69-120(11), 38-69-230, 38-69-320, 38-70-10(4) and (5), 38-70-20, 38-70-30, 38-70-40, 38-70-50, 38-70-60, 38-71-70, 38-71-190, 38-71-310, 38-71-315, 38-71-320, 38-71-325, 38-71-330(7), 38-71-335(B), 38-71-340, 38-71-370, 38-71-410, 38-71-510, 38-71-530, 38-71-540, 38-71-550(a), 38-71-720, 38-71-730(6), 38-71-735, 38-71-750, 38-71-920(6),(11)(c), and (12), 38-71-950(B), 38-71-970, 38-71-980, 38-71-1010(6), 38-71-1020, 38-71-1110, 38-72-40, 38-72-60(A), (C)(3), and (F)(1)(a), 38-74-10(13), 38-74-20, 38-74-60(C)(2), 38-74-70, 38-75-230, 38-75-750(a)(5), 38-75-780, 38-75-930, 38-75-940, 38-75-950, 38-75-960, 38-75-980, 38-77-10(1), 38-77-30(12), 38-77-110(A), 38-77-115, 38-77-120, 38-77-150, 38-77-200, 38-77-260, 38-77-280, 38-77-320, 38-77-330, 38-77-350(A), 38-77-520, 38-77-530, 38-77-570, 38-77-580, 38-77-590(a),(b),(e),(f), and (g), 38-77-600, 38-77-610, 38-79-430, 38-85-70, 38-85-80, 38-87-20(1), (8)(h), and (11)(c)(ii), 38-87-30, 38-87-40, 38-87-50(D), 38-87-80, 38-87-110, 38-87-140, 44-2-75, 44-6-5, 44-6-10, 44-6-30, 44-6-40, 44-6-45, 44-6-50, 44-6-70, 44-6-80, 44-6-90, 44-6-100, 44-6-140, 44-6-146, 44-6-150, 44-6-155, 44-6-160, 44-6-170, 44-6-180, 44-6-190, 44-6-220, 44-6-300, 44-6-310, 44-6-320, 44-6-400, 44-6-410, 44-6-420, 44-6-430, 44-6-440, 44-6-460, 44-6-470, 44-6-500, 44-6-520, 44-6-530, and 59-53-2050, as amended by this act, are effective July 1, 1995.
(H) Articles 3, 5, 7, 9, and 11 of Chapter 1 of Title 13, Chapter 2 of Title 13, Chapter 6 of Title 23, Article 5 of Chapter 23 of Title 1, Chapter 30 of Title 1, and Sections 1-3-215, 2-47-60, 2-68-50, 12-4-15, 12-4-400, 12-4-410, 12-27-35, 12-27-1265, 23-3-15, 23-3-25, 44-20-225, 51-1-300, 51-1-310, 51-1-500, 51-1-510, 56-1-3350, 56-1-3360, 56-1-3370, 56-1-3380, 56-1-3390, 56-1-3400, 56-3-4710, 56-3-4720, 56-3-4730, 56-3-4740, 56-5-4160(H), 57-1-310, 57-1-320, 57-1-325, 57-1-330, 57-1-340, 57-1-350, 57-1-410, 57-1-430, 57-1-440, 57-1-450, 57-1-490, 57-3-110, 57-3-120, 57-3-600, 57-3-780, and 58-3-26, as added by this act, are effective July 1, 1993.
(I) Sections 40-73-15 and 41-3-610, as added by this act, are effective February 1, 1994.
(J) Chapter 4 of Title 48, Chapter 22 of Title 48, and Sections 1-23-111, 47-5-30, 48-9-15, 48-9-45, 49-1-16, and 50-1-5, as added by this act, are effective July 1, 1994.
(K) Section 38-1-30, as added by this act, is effective July 1, 1995.
(L) SECTIONS 99A, 253A, 345, 495, 784, 785, 786, 787, 813A, 815, 996, 997, 1143, 1179, 1226, 1243, 1281, 1436, 1437, 1543, 1544, 1545, 1546, 1581, 1601, 1604, 1605, 1612, 1613, 1614, 1615, 1616, 1617 and 1618 are effective July 1, 1993.
(M) SECTIONS 99B, 253B, 1144, 1180, 1227, 1244, 1273, and 1282 are effective July 1, 1994.
(N) Sections 496, 502, 813B, 816, 1145, and 1587 are effective July 1, 1995.
Approved the 18th day of June, 1993.
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