ORDERS:
ORDER OF REMAND
This matter is before the Administrative Law Judge Division ("Division") pursuant to Petitioner's request for injunctive relief against
Respondent pursuant to S.C. Code Ann. § 1-23-310, et seq., and § 40-47-10, et seq. (Supp. 1999). Petitioner specifically seeks an
order directing Respondent, South Carolina Department of Labor, Licensing and Regulation, State Board of Medical Examiners
("Board"), to hold a hearing for the purpose of reconsidering Petitioner's Voluntary Surrender of her medical license. On September
28, 2000, the undersigned heard oral arguments at the office of the Division, 1205 Pendleton Street, Columbia, South Carolina. This
case is remanded to the Board to conduct a hearing.
FINDINGS OF FACT
Having heard oral arguments, I make the following Findings of Fact by a preponderance of the evidence:
1. The Division has personal and subject matter jurisdiction.
2. Notice of the date, time, place, and subject matter of the hearing was timely given to all parties.
3. Petitioner was arrested and indicted for numerous offenses, including several drug related offenses, criminal conspiracy, attempted
3rd degree arson, and passing a fraudulent check. The offenses occurred between October 4, 1996, and November 16, 1996.
4. On July 11, 1997, the Board initiated a formal investigation of Petitioner's activities.
5. On July 22, 1997, while the charges were pending, Petitioner executed a Voluntary Surrender of License to Practice Medicine.
6. The Board accepted the Surrender on August 13, 1997.
7. On June 3, 1998, Petitioner was found not guilty by reason of insanity with respect to all charges except the fraudulent check
charge. Petitioner was committed to the State Hospital for treatment.
8. On June 3, 1998, Petitioner plead guilty to the fraudulent check charge. The Solicitor, however, later nol prossed the fraudulent
check charge.
9. On January 27, 2000, Petitioner was released to her community on independent living status but continues to receive outpatient
treatment.
10. On February 22, 2000, approximately one month after being released from the State Hospital, Petitioner filed a petition asking the
Board to vacate the Surrender. The petition was based on the argument that Petitioner was legally insane at the time she executed the
Surrender, and, in the alternative, the Surrender was voidable due to lack of proper grounds for the Surrender and Petitioner does not
pose a threat to the general public.
11. On May 22, 2000, without holding a hearing, the Board denied the Petition.
12. The Petitioner is seeking an order requiring the Respondent to hold a hearing to determine whether she was competent at the time
she entered into the Voluntary Surrender of her medical license.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude, as a matter of law, the following:
1. Pursuant to S.C. Code Ann. § 40-47-170 (Supp. 1999) and Chapter 23 of Title 1 of the 1976 Code, as amended, the South Carolina
Administrative Law Judge Division has jurisdiction in this matter.
2. S.C. Code Ann. § 40-47-170 (Supp. 1999) provides, in pertinent part, that "[a]ny 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."
3. The right to follow a chosen profession is a liberty interest protected by the Due Process Clause. Brown v. S.C. State Bd. of Educ.,
301 S.C. 326, 391 S.E.2d 866 (1990). When the State seeks to revoke or deny a professional license, this interest is implicated and
procedural due process requirements must be met. Id. Procedural due process requires the State to give notice and an opportunity for
a hearing, appropriate to the nature of the case. Id.
4. "No person shall be finally bound by a judicial or quasi-judicial decision of an administrative agency affecting private rights except
on due notice and an opportunity to be heard." S.C. Const. art. I, § 22.
5. In this case, Petitioner argues she was not competent at the time she entered into the Voluntary Surrender of her medical license.
By denying Petitioner's petition to vacate, the Board essentially refuses to reinstate Petitioner's medical license. The Board's denial
of Petitioner's petition to vacate, therefore, implicates Petitioner's right to follow a chosen profession. Because Petitioner's liberty
interest is implicated, procedural due process requirements must be met.
6. Petitioner was not given an opportunity for a hearing. The Board did not hold a contested case hearing or hear oral arguments. The
Board merely considered Petitioner's petition to vacate and LLR's return opposing the petition.
7. I find that due process requires the Board to hold a hearing to consider Petitioner's petition to vacate. I, therefore, find that this
case must be remanded to the Board to hold a hearing for the purpose of reconsidering Petitioner's Voluntary Surrender of her
medical license. The Board specifically must determine whether Petitioner was competent at the time she entered into the Voluntary
Surrender of her medical license.
ORDER
Based on the foregoing Findings of Fact and Conclusions of Law,
IT IS HEREBY ORDERED that Respondent must provide Petitioner with a full evidentiary hearing on or before February 7, 2001,
as to the issue of reconsidering the Voluntary Surrender of her medical license.
IT IS FURTHER ORDERED that the parties may engage in limited, reasonably conducted discovery in the form of depositions of
relevant parties. Subpoenas for any depositions will be issued through the Board office, according to established Board procedure.
AND IT IS SO ORDERED.
__________________________________
MARVIN F. KITTRELL
Chief Administrative Law Judge
November 28, 2000
Columbia, South Carolina |