Could a solicitor threaten a worthless-check warrant because someone failed to pay diversion program fees?

Plain-English summary

A magistrate asked about a solicitor's proposed worthless-check letter that threatened an arrest warrant unless a check writer paid charges including fees from a new diversion program. The Attorney General said those program fees were valid, but they were separate from the fraudulent-check statute's $30 service charge. Failing to pay the additional diversion fees did not create the statute's presumption of fraudulent intent; paying the $30 service charge removed that particular statutory presumption.

The opinion also addressed a merchant's potential civil liability for signing a warrant after using the proposed letter. The statute gave immunity for notice in substantially the prescribed form after the required waiting period. The AG said a letter that demanded the extra diversion fees was not substantially similar to that form, so the statutory notice immunity did not extend to it. The office did not decide liability in a specific prosecution.

Currency note

This opinion was issued in 2004. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Did failure to pay a solicitor's diversion fee prove fraudulent intent?
A: No. The AG said those fees were not part of the probable-cause rule in Section 34-11-70.

Q: Were the diversion fees themselves unauthorized?
A: No. The opinion called them legitimate fees enacted through the appropriations provision, while keeping them distinct from the fraudulent-check statute's service charge.

Q: Did the proposed letter preserve the statute's immunity for giving notice?
A: The AG said no. Demanding the extra fees made it unlike the statutory notice form; the opinion did not determine whether a particular merchant was otherwise liable.

Background and statutory framework

The 2004-2005 appropriations provision permitted solicitor-run Worthless Check Units and a schedule of diversion fees. Section 34-11-70 provided a separate service charge, notice rule, and presumption tied to nonpayment of a dishonored check. The opinion separated those two fee systems when assessing a proposed warrant warning and the statute's notice immunity.

Citations

• Section 34-11-70

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/august-31-2004-1/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/03/04aug-31-Overcash.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
HENRY McMAsTER
ATIDRNEY GENERAL

August 31, 2004

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The Honorable Edward H. Overcash, Jr.
Associate Chief Judge
Spartanburg Magistrate Court
Spartanburg County Courthouse
180 Magnolia Street
Spartanburg, South Carolina 29306-2392
Dear Magistrate Overcash:
In a letter to this office you referenced the implementation of Worthless Check Units in solicitor's offices which result from a provision in the 2004-2005 General Appropriations bill. Such provision states in part that:

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A Circuit Solicitor may establish, under his direction and control and with the agreement of the county governing body, a Worthless Check Unit for the purpose of processing worthless checks and to assist the victims of these cases in the collection of restitution. The fee schedule shall be fifty dollars for checks up to $500, one hundred dollars for checks $501-$1,000, and one hundred-fifty dollars for checks
$1,001 or greater. An amount equal to the allowable administrative costs contained in Section 34-11-70(c) ... (not to exceed forty-one dollars) ... must be added to the fee. All fees, other than court costs and an amount equal to the allowable administrative costs contained in Section 34-11-70(c) which must be remitted to the treasurer for deposit in the county general fund, collected by the Worthless Check Unit in accordance with the fee schedule promulgated under this proviso must be deposited into a fund known as the Worthless Check Fund maintained by the county treasurers of the counties comprising the circuit...The Worthless Check Unit shall disburse to the victim all restitution collected in connection with the original complaint filed. Such fees are in addition to those fees established by the fraudulent check provisions of the State Code. Pursuant to S.C. Code Ann. Section 34-11-70 (a) (Supp. 2003) When a check, a draft, or other written order is not paid by the drawee because the maker or drawer did not have an account with or sufficient funds on deposit with the bank or the person upon which it was drawn when presented or the draft, check, or other written order has an incorrect or insufficient signature on it, and the maker or

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The Honorable Edward H. Overcash, Jr.
Page 2
August 31, 2004

drawer does not pay the amount due on it, together with a service charge of thirty dollars, within ten days after written notice has been sent by certified mail to the address printed on the check or given at the time it is tendered or provided on a check-cashing identification card stating that payment was refused upon the instrument, then it constitutes prima facie evidence of fraudulent intent against the maker. Service charges collected pursuant to this section must be paid to the payee of the instrument.

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(1) For purposes of subsection (a), notice must be given by mailing the notice with postage prepaid addressed to the person at the address as printed or written on the instrument. The giving of notice by mail is complete upon the expiration of ten days after the deposit of the notice in the mail. A certificate by the payee that the notice has been sent as required by this section is presumptive proof that the requirements as to notice have been met, regardless of the fact that the notice actually might not have been received by the addressee. The form of notice must be substantially as follows:

"You are notified that a check or instrument, numbered - , issued by you on (date), drawn upon_ (name of bank), and payable to_, has been dishonored. Pursuant to South Carolina law, you have ten days from the date this notice was mailed to tender payment of the full amount of the check or instrument plus a service charge of thirty dollars, the total amount due being_ dollars and_ cents. Unless this amount is paid in full within the specified time above, the holder of the check or instrument may turn over the dishonored check or instrument and all other available information relating to this incident to the solicitor or other appropriate officer for criminal prosecution." (2) When a person instituting prosecution gives notice in substantially similar form provided in item (1) to the person upon which the instrument was drawn and waits ten days from the date notice is mailed before instituting the criminal proceedings, there arises a presumption that the prosecution was instituted for reasonable and probable cause, and the person instituting prosecution is immune from civil liability for the giving of the notice. Pursuant to S.C. Code Ann. Section 34-11-70 (c) (Supp. 2003) Any court, including magistrates, may dismiss any prosecution initiated pursuant to the provisions of this chapter on satisfactory proof of restitution and payment by the defendant of all administrative costs accruing not to exceed forty-one dollars submitted before the date set for trial after the issuance of a warrant. You also forwarded a copy of a letter from a solicitor's office intended to be sent to potential defendants which outlines the fees referenced above. Such letter states in part that "(u)nless this

The Honorable Edward H. Overcash, Jr.
Page 3
August 31, 2004

amount is paid in full by the specified time above, a warrant will be issued for your arrest." You have requested an opinion from this office as to the appropriateness of issuing a fraudulent check warrant based upon this type letter. You also questioned the potential liability of a merchant who signs a fraudulent check warrant based upon a letter similar to the one described in your letter.

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Without question, the fees set forth by the referenced provision in the Appropriations Act are legitimate fees duly enacted by the General Assembly. These fees are, however, distinctive from those fees established pursuant to Section 34-11-70 in that the Appropriations Act fees are part of a diversionary program established by the solicitors. The fees authorized by the Appropriations Act provision are not part of the probable cause determination for purposes of Section 34-11-70. As clearly set forth by Section 34-11-70, when a check is not paid by the maker together with a service charge of thirty dollars within ten days after written notice is sent by certified mail, then prima facie evidence of fraudulent intent against the maker is statutorily made. No such similar determination is made as to those fees authorized by the Appropriations Act provision. As a result, the failure to pay those fees authorized by the Appropriations Act provision does not factor into the finding of prima facie evidence of fraudulent intent. If the drawer of the check pays the thirty dollar fee, there is no longer the statutorily granted presumption of fraudulent intent. As to your question as to the potential liability of a merchant resulting from the issuance of the letter from the solicitor's office referenced by you, as stated in the provision referenced above, when an individual " .. .instituting prosecution gives notice in substantially similar form provided in item (1) to the person upon which the instrument was drawn and waits ten days from the date notice is mailed before instituting the criminal proceedings, there arises a presumption that the prosecution was instituted for reasonable and probable cause, and the person instituting prosecution is immune from civil liability for the giving of the notice." The proposed letter in including the additional language referenced above regarding the fees beyond the thirty dollar fee, is not "substantially similar" to that set forth in Section 34-11-70 (a)(l ). The General Assembly has not seen fit to go beyond the payment of the thirty dollar fee in terms of providing statutory immunity. Sincerely,

Charles H. Richardson
Senior Assistant Attorney General
REVIEWED AND APPROVED BY:

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Robert D. Cook
Assistant Deputy Attorney General