ORDERS:
AFFIRMED FINAL ORDER
This is an appeal of Respondent's November 8, 2000 Order which affected Appellant's license as a professional engineer in
South Carolina. The Appellant, appearing Pro Se, and counsel for the Respondent presented oral argument on December 5,
2001. On April 4, 2002, an Order was issued by the undersigned judge requiring both parties to submit supplemental briefs
on the issue of how the repeal of S.C. Code Ann. §40-22-390, the statute on which most of the violations in the Board's
order are based, affects the Complaint and Order of the Board in the case. Mr. White filed a Notice of Appearance on
behalf of the Appellant when he filed the Supplemental Brief.
I. FACTUAL BACKGROUND
The Appellant is an engineer licensed by the State Board of Registration for Professional Engineers and Land Surveyors to
practice as a professional engineer in South Carolina. On August 18, 2000, the Board through its counsel issued a
complaint against the Appellant and set a hearing in the matter for September 19, 2000. Appellant appeared with counsel
on that date and a hearing was held. On November 8, 2000, the Board issued its order regarding the complaint. The Board
issued its Order in which is made findings of fact and conclusions of law, based on the following occurrences:
1. On or about November 21, 1998, the Appellant drilled three monitoring wells in connection with the preparation of a
rapid assessment plan for the Auto Fountain By-Pass project in Bennettsville, S.C. The Appellant did not possess a lawfully
issued South Carolina well driller's license.
2. On or about November 21, 1998, the Appellant fraudulently signed the name of Kerry Drake, a former employee and
licensed well driller, to three regulatory documents. The documents certified that the three wells were drilled in accordance
with the codes and regulations governing well drilling in South Carolina.
As a result, the Board issued an order imposing the following sanctions:
1. The Respondent (1) shall be and is hereby issued a Public Reprimand.
- The Respondent's license shall be suspended for a period of two years. The suspension shall be stayed and the
Respondent's license reinstated in a probationary status after a period of three months active suspension.
- As a condition of probation, the Respondent shall complete a Board approved ethics course equivalent to 3 CEU
(continuing education units) or 30 contact hours, within twelve months of the effective date of this order.
- The Respondent shall pay a fine in the amount of $6000.00. This fine shall be paid prior to the probationary
reinstatement.
- This Order shall be effective three months after it is served on the Respondent or his counsel.
- Failure of Respondent to comply with any of the provisions of this Order may result in the immediate temporary
suspension of Respondent's license to practice as a professional engineer and in further disciplinary action.
The Appellant brought the appeal the basis that witnesses presented by the Department were not credible and that his
actions did not warrant a suspension of his license.
II. STANDARD OF REVIEW
Jurisdiction on appeal is vested in the Administrative Law Judge Division pursuant to the Administrative Procedures Act
(APA), specifically S.C. Code Ann. §§ 1-23-600(D) (Supp. 2001) and S.C. Code Ann. 40-1-160 (2001). On appeal to the
Division, the standard of review is limited to the record presented. An Administrative Law Judge may not substitute her
judgment for that of the agency unless the agency's determination is affected by error of law or is clearly erroneous in view
of the reliable, probative, and substantial evidence in the whole record. S.C. Code Ann. § 1-23-380(A)(6) (Supp. 2001);
Lark v. Bi-Lo, Inc., 276 S.C. 130, 276 S.E.2d 304 (1981). A decision is supported by "substantial evidence" when the
record as a whole allows reasonable minds to reach the same conclusion reached by the agency. Bilton v. Best Western
Royal Motor Lodge, 282 S.C. 634, 321 S.E.2d 63 (Ct. App. 1984). The well-settled case law in this state has also
interpreted the rule to mean that a decision will not be set aside simply because reasonable minds may differ on the
judgment. Lark supra. The fact that the record, when considered as a whole, presents the possibility of drawing two
inconsistent conclusions from the evidence does not prevent the agency's finding from being supported by substantial
evidence. Waters v. South Carolina Land Resources Conservation Comm'n, 321 S.C. 219, 467 S.E.2d 913 (1996); Grant
v. South Carolina Coastal Council, 319 S.C. 348, 461 S.E.2d 388 (1995); Palmetto Alliance, Inc. v. South Carolina Public
Service Comm'n, 282 S.C. 430, 319 S.E.2d 695 (1984).
In applying the substantial evidence rule, the factual findings of the administrative agency are presumed to be correct.
Rodney v. Michelin Tire Co., 320 S.C. 515, 466 S.E.2d 357 (1996), citing Kearse v. State Health and Human Finance
Comm'n, 318 S.C. 198, 456 S.E.2d 892 (1995). Furthermore, the reviewing court is prohibited from substituting its
judgment for that of the agency as to the weight of the evidence on questions of fact. Grant, supra citing Gibson v.
Florence Country Club, 282 S.C. 384, 318 S.E.2d 365 (1984). Finally, the party challenging an agency action has the
burden of proving convincingly that the agency's decision is unsupported by substantial evidence. Waters, (citing Hamm v.
AT&T, 302 S.C. 210, 394 S.E.2d 842 (1994)).
III. STATEMENT OF ISSUES ON APPEAL
A. Is the decision of the Board supported by reliable, probative, and substantial evidence?
B. Was the Board of Registration for Professional Engineers and Land Surveyors acting within its discretion in imposing
the sanctions it did?
IV. ANALYSIS
A. Is the decision of the Board supported by reliable, probative, and substantial evidence?
The Administrative Law Judge Division must abstain from overturning an agency's decision unless it is affected by errors
of law or is clearly erroneous in light of the reliable, probative, and substantial evidence on the record. Grant v. S.C.
Coastal Council, 319 S.C. 348, 461 S.E.2d 388 (1995). If reasonable minds can draw two inconsistent conclusions, the
administrative agency's decision can still be supported by substantial evidence. Ellis v. Spartan Mills, 276 S.C. 216, 277
S.E.2d 590 (1981). To be disturbed, the findings of the agency must be arbitrary and capricious as a matter of law. Welch
v. Public Service Commission, 301 S.C. 259, 391 S.E.2d 556 (1990).
In the present case, the Board's finding that the acts committed by the Appellant violated state law and regulation
governing professional engineers was supported by substantial evidence. The Board found that the Appellant had drilled
three wells for a project even though he did not possess a well driller's license. In South Carolina a person may not practice
as a well driller without holding a certificate of registration to do so. S.C. Code Ann. §40-23-140(D). This finding was
supported by evidence from the Appellant. Appellant admitted during his testimony that he drilled the wells and was not
licensed to do so. Similarly, the Board had evidence that the Appellant fraudulently submitted documents to a regulatory
agency stating that a licensed well driller had drilled the wells. Again, witnesses, including the Appellant, testified that a
name was forged by the Appellant on the documents so that they would be approved.
The Appellant's testimony alone provides substantial evidence that he committed violations of S.C. Code Ann. §§ 40-1-110 (f), 40-1-110 (g), 40-22-390 (2), and 40-22-390(5)(to wit: 25 S.C Code of Regs. §§49-300 (B); 49-303 (A); and 49-306).
Much of the basis for the appeal stems from the Appellant's contention that the witnesses testifying on behalf of the
Department lied during the hearing. However, the credibility of the witnesses is for the finder of fact to decide. The
Appellant was represented by an attorney at the hearing and had full opportunity to cross-examine the witnesses. Also, the
Appellant had full opportunity to testify and while doing so admitted to doing the two violations on which the sanctions
were based.
B. Was the Board of Registration for Professional Engineers and Land Surveyors acting within its discretion in
imposing the sanctions it did?
The Board's discretion in sanctioning a professional engineer for violation of statutes and regulations is found in S.C. Code
Ann. §§ 40-1-120 and 40-22-390 (2001). As discussed above, there is substantial evidence to support the findings of fact
made by the Board that the Appellant violated provisions of §40-1-110, §40-22-390 and provisions found in regulations.
All of the violations involve misconduct and deceit. The Appellant claims the Board should have considered the fact that he
was frustrated in his attempts to finish work on a contract and did what he did as a last resort. However, I find that the
decision by the Board had a rational basis and that imposing sanctions, including a suspension against the Appellant, was
not arbitrary and capricious. Nevertheless, in light of the suspension and probation, the imposition of a $6,000 fine is
unduly harsh. Therefore, the fine shall be reduced to $1,000 and shall be paid prior to the probationary reinstatement.
V. EFFECT OF THE REPEAL OF S.C. CODE ANN. §40-22-390
The actions for which Appellant was disciplined occurred in 1998. The actions violated what was then §40-22-390 of the
S.C. Code of Laws. However, on May 26, 2000, that statute was repealed and identical language was re-codified at §40-22-110. On August 18, 2000, the Department brought a Complaint against Appellant for the actions. On November 8, 2000,
the Board issued its Order sanctioning Appellant. S.C. Code Ann. §40-22-390 was cited throughout the Order as the basis
for some of the violations. The question is was it proper to cite a statute which had by then been repealed. In both the
medical and legal professions, disciplinary actions have been reviewed by appellate courts in this State questioning whether
the licensed professional should have been disciplined under the rules in effect at the time the professional committed the
offense, or at some later time prior to the time of the disciplinary hearing. In both cases, the Supreme Court of South
Carolina has held that the proper rule to follow and to discipline is the rule in place at the time the misconduct is committed
by the professional.
In South Carolina State Board of Medical Examiners vs. Hedgepath, 325 S.C. 166, 480 S.E.2d 724 (1997), the Supreme
Court held that a physician's improperly revealing patient confidences was governed by the standard that was in effect at
the time of the alleged misconduct, and not a subsequent standard that was in place when the misconduct was revealed. Id.
at 726. That case cites In re Anonymous, 317 S.C. 10, 451 S.E.2d 391 (1994) as precedent. In Anonymous, the Supreme
Court of South Carolina held that an attorney's misconduct was to be determined by the ethical rules in effect at the time of
the alleged transgression, not by a later rule enacted prior to the commencement of the hearing. Those cases support the
Board's position that is properly disciplined Appellant for conduct under the law that was in effect at the time his
transgression occurred.
Regardless of whether S.C. Code Ann. §40-22-390 was the proper statute with which to charge Appellant, the Board also
found the same conduct violated S.C. Code Ann. §40-1-110 (1)(F) and (G). The Board found that the conduct of drilling
water wells without a license and falsely certifying that a licensed driller had done the work constituted false, fraudulent,
and/or deceitful conduct under §40-1-110 (1)(F)and (G). That statute was in effect at the time the misconduct of Appellant
occurred in 1998 and remains in effect. The underlying misconduct for which Appellant was disciplined by the Board,
therefore, was still a violation of the practice of the profession of engineering under §40-1-110.
VI. ORDER
The violations of state statute and regulations found by the Board against the Appellant were supported by substantial
evidence and the sanctions imposed did not constitute an abuse of discretion. However, the fine imposed being unduly
harsh, I hereby reduce the fine imposed to $1,000. The remainder of the decision and sanctions of the Board of Registration
for Professional Engineers and Land Surveyors are AFFIRMED.
IT IS SO ORDERED.
CAROLYN C. MATTHEWS
Administrative Law Judge
August 5, 2002
Columbia, South Carolina
1. This language is taken directly from the Board's order. In that Order, Mr. Smith, the Appellant in this appeal, was the
Respondent. |