SC Administrative Law Court Decisions

The Petitioners seek an order compelling the South Carolina Department of Labor, Licensing and Regulation, State Board of Architectural Examiners ( the “Board”) to furnish ceratin documents and information relating to a pending disciplinary proceeding against them. Having considered the applicable law and the arguments presented by the parties in the papers filed in this matter, I find that Petitioners’ Petition for Injunctive Relief must be denied.

Petitioners contend that they are entitled to the documents and information on statutory and constitutional grounds. However, I find that, whatever the merits of Petitioner’s claims to the requested documents and information might be, the Board’s decision to refuse such documents and information is not immediately reviewable by this tribunal.

The Administrative Law Judge Division has appellate jurisdiction over final decisions of contested cases before the professional and occupational licensing boards within the South Carolina Department of Labor, Licensing and Regulation, including the State Board of Architectural Examiners. See S.C. Code Ann. § 1-23-600(D) (Supp. 2002). The Division’s appellate review of such decisions is governed by S.C. Code Ann. § 1-23-380 (Supp. 2002). S.C. Code Ann. § 1-23-600(D) (Supp. 2002). Under that Section, “[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.” S.C. Code Ann. § 1-23-380(A) (Supp. 2002). Therefore, this tribunal may only address an interlocutory decision of the Board, such as the information and document request denial at issue in this case, when review of the Board’s final order through the normal appellate process would not provide an adequate remedy to Petitioners. And, as Petitioners are the parties seeking to invoke this tribunal’s jurisdiction, they have the burden of establishing that review of the Board’s final order could not provide an adequate remedy for the Board’s alleged violations. See Yarborough & Co. v. Schoolfield Furniture Indus., Inc., 275 S.C. 151, 268 S.E.2d 42 (1980).

In the case at hand, Petitioners have not made such a showing. In the appellate review of the Board’s final order in this matter, this tribunal “may affirm the decision of the agency or remand the case for further proceedings,” and “may reverse or modify the decision if substantial rights of the appellant have been prejudiced” because the Board’s decision is, among other things, “in violation of constitutional or statutory provisions; . . . made upon unlawful procedure; . . . affected by other error of law; . . . [or] arbitrary or capricious or characterized by abuse of discretion.” S.C. Code Ann. § 1-23-380(A)(6) (Supp. 2002). Therefore, if, on appellate review of the Board’s final decision, this tribunal finds that the Board has prejudiced Petitioner’s statutory and/or constitutional rights during the disciplinary proceedings by failing to disclose certain documents and information, this tribunal has the authority to remand the matter to the Board for a new disciplinary hearing with the requisite disclosures or to reverse the Board’s order in its entirety. Because either of these actions would be an adequate remedy for the statutory and constitutional rights violations alleged by Petitioners, the Board’s interlocutory decision to refuse certain documents and information to Petitioners is not immediately review able by this tribunal.

Further, Petitioners’ contention that the Board’s refusal to produce the requested documents and information generally violates their constitutional rights is not ripe for adjudication by this tribunal. Beyond certain fundamental requirements, see S.C. Dep’t of Labor, Licensing & Regulation v. Girgis, 332 S.C. 162, 166, 503 S.E.2d 490, 492 (Ct. App. 1998), “[d]ue process is flexible and calls for such procedural protections as the particular situation demands.” Stono River Envtl. Prot. Ass’n v. S.C. Dep’t of Health & Envtl. Control, 305 S.C. 90, 94, 406 S.E.2d 340, 342 (1991); see also Roper Hosp. v. Clemons, 326 S.C. 534, 540, 484 S.E.2d 598, 601 (Ct. App. 1997) (noting that the due process “requirements in a particular case depend upon the importance of the interest involved and the circumstances under which the deprivation may occur”). Accordingly, the determination of whether a party’s constitutional rights are prejudiced by the refusal to produce certain documents and information is best determined in light of subsequent developments in the proceedings. See Lowndes Prods., Inc v. Brower, 262 S.C. 431, 205 S.E.2d 184 (1974). Further, “proof of a denial of due process in an administrative proceeding requires a showing of substantial prejudice.” Palmetto Alliance, Inc. v. S.C. Pub. Serv. Comm’n, 282 S.C. 430, 435, 319 S.E.2d 695, 698 (1984). Any review of the Board’s decision must examine the decision in the context of the entire proceeding before the Board and therefore cannot be conducted until the conclusion of that proceeding. Here, as the Board has not yet held a disciplinary hearing on the charges against Petitioners, this tribunal is incapable of determining whether the Board’s denial of the documents and information to Petitioners violated their constitutional rights.

ORDER

For the reasons set forth above,

IT IS HEREBY ORDERED that Petitioners’ Petition for Injunctive Relief is DENIED;

IT IS FURTHER ORDERED that the Petitioners’ request for a stay of the pending hearing is DENIED;

AND IT IS SO ORDERED.

______________________________

C. Dukes Scott

Administrative Law Judge

October 2, 2003

Columbia, South Carolina