ORDERS:
FINAL ORDER AND DECISION
PROCEDURAL HISTORY
The Respondent (the Board) is an agency of the State of South Carolina which is
statutorily mandated to regulate the practice of chiropractic in this State pursuant to S.C. Code
Ann. § 40-9-10 et seq. (Supp. 2002). The Board has the exclusive responsibility to discipline
licensed chiropractors for acts of professional misconduct, as provided in S.C. Code Ann. § 1-23-310 et seq. (Supp. 2002), and the S.C. Code Ann. § 40-9-10 et seq. (Supp. 2002).
The Appellant is a chiropractor licensed by the Board to practice chiropractic in South
Carolina. On June 7, 2001, a designated hearing officer for the Board heard charges against the
Appellant which resulted from a formal complaint that had been properly served upon him. The
Appellant did not appear at that hearing; the State was represented by Richard W. Simmons, II,
Esquire.
As a result of the evidence presented at that hearing, the hearing officer produced a
written report recommending disciplinary action against the Appellant for violating various
sections of the laws governing the practice of chiropractic, based on his convictions of three
counts of willful failure to file an income tax return. A final hearing was held before the full
Board on August 23, 2001, and the Board issued a Final Order on October 19, 2001. That
Order found the Appellant violated the law governing the practice of chiropractic, imposed a
$750.00 fine, ($250.00 each for violations of S.C. Code Ann. § 40-9-90(6), Reg. 25-6A(7) and
S.C. Code Ann. § 40-9-90(7)), plus costs to be determined, and placed his license on probation
for a period of one year.
During the pendency of this proceeding, the Appellant filed a Motion for Injunctive
Relief with the Circuit Court in Richland County on June 6, 2001. The Appellant did not seek to
stay the Board’s proceedings. The Honorable Thomas Cooper issued an Order denying the
Appellant’s Motion for Injunctive Relief on August 1, 2001.
The Appellant filed an appeal of the Board’s decision with this Court on October 25,
2001.
SCOPE OF REVIEW
A reviewing court may not overturn an agency’s decision unless that decision is “clearly
erroneous in view of reliable, probative and substantial evidence on the whole record.” S.C.
Code Ann. § 1-23-380 (A)(6)(e) ( Supp. 2002). The South Carolina Supreme Court has defined
“substantial evidence” as “such relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.” Midlands Utility, Inc. v. S.C. Department of Health and
Environmental Control, 298 S.C. 66, 69, 378 S.E.2d 256, 258 (1989). In applying this standard
of review, an appellate court may not substitute its judgment for that of the agency concerning
the weight of the evidence on questions for fact, even if there is room for a difference of
intelligent opinion as to the weight that could be afforded that evidence. See e.g., Toussaint v.
State Board of Medical Examiners, 303 S.C. 316, 400 S.E.2d 488 (1991). The decision of the
administrative agency can be reversed only if the administrative findings are clearly erroneous in
view of the substantial evidence on the record as a whole. Lark v. Bi-Lo, Inc., 276 S.C. 130, 276
S.E.2d 304 (1981). Applying this standard to the facts, substantial evidence exists to support the
Board’s finding that the Appellant violated the laws governing the practice of chiropractic in this
State when he was convicted in criminal court of three counts of willful failure to file his income
taxes.
The Appellant’s brief is unusual in that it articulates no issues on appeal, not does it
address except tangentially the actual hearing before the Board. However, in light of Appellant’s
pro se status, there are several issues that were indirectly raised in the brief, which will be
addressed below.
ANALYSIS
I. THE BOARD HAD BOTH PERSONAL AND SUBJECT MATTER JURISDICTION
OVER THIS MATTER, AND THE ADMINISTRATIVE LAW JUDGE DIVISION
HAS JURISDICTION TO HEAR THIS APPEAL.
In paragraphs 1, 2, and 16 of his brief, the Appellant alleges that the Board had no
jurisdiction to hear a disciplinary action against him, and that the Administrative Law Judge
Division (ALJD) has no jurisdiction to hear this case on appeal. This argument is rejected in light
of the clear statutory authority empowering the Board to hear disciplinary actions against licensed
chiropractors and empowering this Court to hear appeals of all Chiropractic Board disciplinary
actions.
The Appellant claimed at oral argument that the composition of Board was unconstitutional
based on the Board members’ membership in a trade association, in addition to their participation
on the Board. The Appellant contends that such membership and participation constitutes dual
office holding and, as such, is unconstitutional. Without deciding this issue, I find that Great
Games, Inc. And Busters, Inc. v. South Carolina Department of Revenue, 339 S.C. 79, 529 S.E.2d
6 (2000) controls. There, Chief Justice Finney found that the ALJD is “an agency of the executive
branch of government, and must follow the law as written until its constitutionally (sic) is judicially
determined; ALJs have no authority to pass upon the constitutionality of a statute or regulation.”
(Emphasis in original)
The Appellant is a licensed chiropractor. Thus, he is subject to the jurisdiction of the Board,
which has the authority to regulate his license. S.C. Code Ann. § 40-9-30 (Supp. 2002). The Board
has the authority to discipline licensees [§40-9-30(D)(10) Supp. 2002] if they commit certain
misconduct delineated in § 40-9-90 (Supp. 2002), which includes a violation of any duly enacted
regulation of the Board.
The Board has additional grounds to discipline licensees if they commit violations of S.C.
Code Ann. § 40-1-110 (Supp. 2002) [as applied to all administrative Boards listed in § 40-1-40
(Supp. 2002)]. In this case, the Appellant was convicted of three criminal offenses for willfully
failing to file his income taxes for three consecutive years. The Board found that those convictions
violated its Regulation 25-6(A)(7), which makes the conviction of a felony or a misdemeanor an
unprofessional act justifying discipline. It found that the convictions violated Regulation 25-7(A)
in that they were dishonorable, unethical or unprofessional, which is also an unprofessional act
defined by that regulation. Finally, the Board found that the Appellant’s conduct relating to the
convictions violated S.C. Code Ann. § 40-1-110(h) in that the convictions were for crimes of moral
turpitude. Moral turpitude is defined as “an act of baseness, evilness, or depravity in the private and
social duties which man owes to his fellow man or to society in general, contrary to the customary
and accepted rule of right and duty between man and man. State v. Major, 301 S.C. 181, 391 S.E.2d
235 (1990). In determining whether a crime is one involving moral turpitude, the court focuses
primarily on the duty to society and fellow man which is breached by the commission of the crime.
Id. ” Alex Sanders, et al., Trial Handbook For South Carolina Lawyers § 13:13 Impeachment by
Crimes of Moral Turpitude (1994). Because each of these violations were properly enacted as
statues or regulations, the Board had the authority to subject the Appellant, a licensee, to its
jurisdiction and to discipline him for these violations.
The Administrative Law Judge Division has jurisdiction to hear all appeals of final orders
from the Board. S.C. Code Ann. § 1-23-380(B) (Supp. 2002). Therefore, this Court is the
appropriate tribunal to exercise jurisdiction over this appeal. Obviously, the Appellant recognized
this fact, because he filed his appeal with this Court. Although the Appellant argued that he was
appearing pro propria persona to contest personal jurisdiction, by arguing the merits of the case,
he waived his right to contest personal jurisdiction. See e.g., Connell v. Connell, 249 S.C. 162, 153
S.E. 2d 396 (1967).
II.THE BOARD HAS THE AUTHORITY TO DISCIPLINE THE APPELLANT FOR
THE COMMISSION OF EITHER A FELONY OR A MISDEMEANOR.
The Appellant appears to argue in his brief that the Board had no authority to discipline him
because he was convicted of three misdemeanors instead of felonies. That is incorrect. S.C. Code
Regs. 25-6(A)(7) (Supp. 2002) defines unprofessional conduct by a chiropractor to include either
a conviction for a felony or misdemeanor. That regulation, when read in conjunction with S.C. Code
Ann. § 40-9-90(6), which states that it shall be misconduct for a chiropractor to violate any
regulation of the Board, clearly gives the Board authority to discipline a chiropractor based on either
a felony or misdemeanor conviction.
III.THE RECORD ON APPEAL PRESENTED TO THIS COURT IS COMPLETE.
The Appellant states in his brief that the Record on Appeal that was submitted by counsel
to the Board was incomplete because additional material should be presented. The additional
material that the Appellant contends is part of the record consists of a prior disciplinary matter,
which was affirmed by this Court, but dismissed while on appeal to the Circuit Court. That matter
involved the Board’s action against the Appellant’s license, because he had failed to inform the
Board on his license renewal application that he had been indicted for the crimes of which he was
eventually convicted. The Board’s license renewal application asked the Appellant whether he had
been arrested since he last renewed his license, and he answered “no.” In fact, however, the
Appellant had been arrested for the three offenses, and the Board viewed his answer to the contrary
as dishonest. Ultimately, the Board settled the disciplinary action against the Appellant privately,
and the matter was closed.
The appeal before this Court from the convictions of the Appellant for these offenses.
Although this case stems from the ultimate convictions of these charges, it is not the same case, and
the Appellant may not assert res judicata as a defense to the action taken by the Board for his
convictions of three counts of willful failure to file his taxes. See, South Carolina Department of
Natural Resources v. Miller and South Carolina Department of Natural Resources v. Jamieson, 97-ALJ-13-0213, which states that “during the pendency of an appeal from a conviction, there is no
right entitling the licensee to a supersedeas from administrative proceedings.” (Citing Parker v.
State Highway Dept., 224 S.C. 263, 78 S.E.2d 382 (1953)).
IV. THE BOARD HAD SUBSTANTIAL CREDIBLE EVIDENCE ON WHICH TO BASE
ITS FINDINGS AND TO TAKE DISCIPLINARY ACTION.
In paragraph 12 of the Appellant’s argument, he alludes to a lack of evidence to support
the Board’s decision in this matter. The Board disciplined the Appellant for three convictions of
willfully failing to file his income tax return. At the hearing, the criminal indictments, as well as
certified documents reflecting that the Appellant had been convicted of the offenses, were entered
into evidence. (Record, pp. 58-63). This evidence was sufficient to establish that the Appellant had
been convicted of the offenses. The Board’s decision to conclude that these convictions violated
the prohibition against professional misconduct in the practice of chiropractic was well within their
discretion.
V. THE APPELLANT WAS ADEQUATELY NOTIFIED OF THE HEARINGS BEFORE
THE BOARD.
The Appellant alleges in paragraphs 14 and 15 of his brief that he was not afforded adequate
notice of the hearings before the Board. The record establishes that the Appellant was properly
notified of the hearing by certified mail on April 2, 2001, (R. p. 10) for a hearing date originally
scheduled for May 24, 2001 (R. pp. 12-13). Pursuant to his verbal request, the Appellant was
granted a continuance until June 7, 2001. (R. pp. 12-13). Notice of the new hearing date was sent
to him in writing on May 25, 2001 (R. pp. 10-11, 53). The Appellant was well aware of the charges
and the original hearing date for the requisite thirty days. (See S.C. Code Ann. § 1-23-320(A)
(Supp. 2002). He personally appeared at the Board’s offices to seek a continuance until June 7,
2001, and then filed a motion seeking injunctive relief from the Circuit Court on June 6, 2001, one
day prior to his hearing. (R. pp. 12-14, 54). That motion was ultimately denied (R. pp. 87-89). The
Appellant’s assertions that he did not receive notice are unsupported by the record.
VI.THE FACT THAT THE APPELLANT IS APPEALING HIS CRIMINAL
CONVICTIONS DOES NOT PREVENT THE BOARD FROM TAKING
DISCIPLINARY ACTION AGAINST HIS LICENSE.
The Appellant argues in paragraphs 14 and 15 that his convictions were erroneous and that
he has appealed them. The Appellant, however, stands convicted of three criminal violations for
failing to file his income taxes. Unless and until these convictions are overturned, the Board acted
properly by taking action against his license based on these convictions.
The balance of the Appellant’s brief contains threats of prosecution against counsel for the
Board, demands for a jury trial , assertions that this litigation is frivolous, explanations of his status
appearing in propria persona and general objections to the entire administrative and criminal
process in the state of South Carolina. The Appellant raised similar allegations at oral argument,
including allegations of fraud in the composition of the Board that heard his case. These attacks are
baseless and unfounded.
CONCLUSION
For the reasons stated herein, I find that the Board's decision to fine the Appellant $750.00,
plus costs, and to place his license on probation for one year is adequately supported by the reliable,
probative and substantial evidence in the whole record of the case as it comes before me on appeal.
Further, the sanctions are within the range authorized by the statute. Therefore, the decision of the
Board of October 19, 2001 is hereby AFFIRMED.
AND IT IS SO ORDERED.
_____________________________
Carolyn C. Matthews
Administrative Law Judge
April 1, 2003
Columbia, SC |