ORDERS:
DECISION AND ORDER
STATEMENT OF THE CASE
This matter is before the Administrative Law Judge Division pursuant to the consolidated
appeals of Joseph W. Hiller, Sr., and Joseph W. Hiller, Jr. from decisions of the State Board of
Architectural Examiners ("the Board") suspending their respective licenses to practice architecture
for a period of ninety days. A hearing was conducted on October 12, 1998 at the Administrative Law
Judge Division in Columbia, South Carolina, at which time the parties presented oral arguments.
For the reasons stated herein, the decision of the Board is affirmed.
BACKGROUND
In September, 1997, the Board issued formal complaints against Appellants alleging that each
had engaged in actions falling outside the accepted scope of architectural practice and constituting
the unlicensed practice of engineering. A joint hearing on the charges against both Appellants was
originally scheduled for December 12, 1997. The Board provided Appellants with a list of witnesses
they intended to call at the hearing. Additionally, the Board provided Appellants a copy of the
documentary evidence they intended to introduce at the hearing and written reports from their expert
witnesses setting forth the substance of their expected testimony. On December 2, 1997, counsel
for Appellants filed and served a motion for continuance of the December 12 hearing. The Board
granted the continuance and rescheduled the hearing for January 14, 1998. In early January, counsel
for Appellants requested a second continuance, which the Board granted. The Board issued an Order
of Continuance on January 19, 1998, rescheduling the hearing for February 19, 1998.
In the meantime, on January 13, 1998, counsel for Appellants served a Notice of Depositions,
Request for Production of Documents and Standard Interrogatories on the Board. On January 19,
1998 the Board declined to issue deposition subpoenas on Appellants' behalf and declined to
respond to Appellants' Request for Production of Documents and Standard Interrogatories, asserting
that this discovery is not required by the Administrative Procedures Act. On February 5, 1998,
counsel for Appellants served a "Petition for Review of Administrative Order" on the Board and
filed the petition with the Greenville County circuit court, requesting appellate review of the Board's
denial of formal discovery and requesting a writ of mandamus requiring the Board to issue
deposition subpoenas. Counsel did not request the Board to stay any further proceedings or to
continue the February 19 hearing. Neither did counsel request this tribunal or the circuit court to stay
proceedings before the Board.
On Friday, February 13, 1998, counsel received notice of his required appearance in federal
district court in Greenville for a criminal pre-trial conference at 10:00 a.m. on February 19, the same
morning as the previously scheduled hearing before the Board in this case. Counsel was apparently
out of his office on that Friday, but on Monday, February 16, at 8:01 p.m., he faxed a letter to the
Board informing them that he and Appellants would not be attending the February 19 hearing due
to the pendency of their Petition for Review before the circuit court. Counsel included no
information about the federal court conflict in that letter. The Board's offices were closed when
counsel faxed the letter, and counsel for the Board did not receive the letter until the following
morning, Tuesday, February 17, 1998. Counsel for the Board faxed a response to Appellants'
counsel the following morning, Wednesday, February 18, 1998, interpreting counsel's February 16
letter as a request for a continuance, stating that the request would have to be determined by the
Board at the beginning of the February 19 hearing, as the short notice precluded a ruling before then.
On February 18, 1998 at approximately 5:00 p.m.,(1) counsel for Appellants faxed a letter to
the Board stating that he had not requested a continuance of the February 19 hearing, but that he
considered the filing of the Petition for Review with the circuit court to have automatically stayed
all further proceedings before the Board. Counsel stated that Appellants were not required to appear
before the Board on February 19 due to the alleged automatic stay. Counsel further stated in the
February 18 letter that he had been summoned to appear in federal court the following morning at
10:00 a.m., precluding his appearance at the Board hearing. Immediately after receiving this letter,
counsel for the Board contacted each Board member and all witnesses scheduled for the hearing to
arrange for its postponement until 1:00 p.m. on the afternoon of the 19th. Counsel for the Board
subsequently contacted counsel for Appellants, via telephone at 6:00 p.m. and facsimile later in the
evening, to inform him of the postponement.
Neither Appellants nor their counsel appeared at the February 19 hearing, which commenced
at 1:00 p.m. At the close of the Board's presentation of evidence, the Board paused the hearing to
determine whether Appellants might have arrived after the 1:00 p.m. commencement. After
determining that no one had appeared on Appellants' behalf, the Board voted to discipline both
Appellants, based on the evidence presented, and then concluded the hearing. On February 20, 1998,
counsel for Appellants filed with the circuit court a "Motion for Order of Stay of Proceedings,"
requesting that all further proceedings before the Board be stayed. On March 4, 1998, the Board
served Appellants with Orders suspending their respective licenses to practice architecture for a
period of ninety days. On March 26, 1998, Appellants filed this appeal with the Administrative Law
Judge Division. On April 24, 1998, the Honorable Charles B. Simmons, Jr. issued an Order
transferring Appellants' Petition for Review and Motion for Order of Stay to the Administrative Law
Judge Division pursuant to S.C. Code Ann. § 1-23-380(B) (Supp. 1997). On April 30, 1998,
Appellants served a "Motion to Alter or Amend" Judge Simmons' Order.
ISSUES
I. Did the Board violate S.C. Code Ann. § 1-23-320(a) and (b) (Supp. 1997) in
postponing the commencement time of the February 19 hearing, when less than thirty days' notice
of the new hearing time was given to Appellants?
II. Did the Board violate Appellants' due process rights in conducting the February 19
hearing?
III. Did the Board violate the Administrative Procedures Act in declining to issue
deposition subpoenas?
IV. Did the Board violate Appellants' due process rights in declining to issue deposition
subpoenas?
STANDARD OF REVIEW
In conducting an appellate review of a final administrative decision, the Administrative Law
Judge may reverse or modify the decision if
substantial rights of the appellant have been prejudiced because the
findings, inferences, conclusions or decisions are:
(a) in violation of constitutional or statutory provisions;
(b) in excess of the statutory authority of the agency;
(c) made upon unlawful procedure;
(d) affected by other error of law;
(e) clearly erroneous in view of the reliable, probative and substantial
evidence on the whole record; or
(f) arbitrary or capricious or characterized by abuse of discretion or
clearly unwarranted exercise of discretion.
S.C. Code Ann. § 1-23-380(A)(6) and (B) (Supp. 1997). This tribunal, however, may not substitute
its judgment for that of the administrative agency as to the weight of the evidence on questions of
fact. Id.; see also Lark v. Bi-Lo, Inc., 276 S.C. 130, 276 S.E.2d 304 (1981).
DISCUSSION
Issues I and II
Appellants argue that the Board violated their statutory and due process rights to notice in
conducting the February 19, 1998 hearing after postponing the commencement time. I disagree.
The requirements of due process include notice and an opportunity to be heard in a
meaningful way. Stono River Environmental Protection Ass'n v. South Carolina Department of
Health and Environmental Control, 305 S.C 90, 406 S.E.2d 340 (1991). Due process is a flexible
concept and calls for such procedural protections as the particular situation demands. Id. The
requirements of due process in a particular case depend on the importance of the interest involved
and the circumstances under which the particular deprivation may occur. See South Carolina
National Bank v. Central Carolina Livestock Market, Inc., 289 S.C. 309, 345 S.E.2d 485 (1986),
citing Walters v. National Ass'n of Radiation Survivors, 105 S.Ct. 3180 (1985).
Additionally, the Administrative Procedures Act requires that all parties in a contested case
be afforded an opportunity for hearing after notice of not less than thirty days. S.C. Code Ann. § 1-23-320(a) (Supp. 1997). The notice shall include, among other things, a statement of the time, place
and nature of the hearing. S.C. Code Ann. § 1-23-320(b) (Supp. 1997).
Appellants contend that the hearing notice in this case no longer met the requirements of
section 1-23-320 after the Board made the decision to postpone the commencement time of the
February 19 hearing. Under this interpretation, any delay, regardless of its significance or cause,
would require a rescheduling of the hearing date so that an additional thirty days' written notice
could be issued to the parties. Such an interpretation would lead to absurd results, imposing an
unreasonable burden on administrative agencies and crippling their efforts to resolve contested cases.
The thirty day notice provision is designed to provide the parties adequate time to prepare for a
hearing. The party is put on notice to be prepared, if a date must be changed, an additional thirty
days to prepare for a hearing or to reschedule is not required. Appellants' interpretation of section
1-23-320 must be rejected. See Kiriakides v. United Artists Communications, Inc., 312 S.C. 271,
440 S.E.2d 364 (1994) (However plain the ordinary meaning of the words used in a statute may be,
the courts will reject that meaning when to accept it would lead to a result so plainly absurd that it
could not possibly have been intended by the Legislature or would defeat the plain legislative
intention).
Further, in light of counsel's very late notice to the Board of his federal court conflict, the
Board's notice to counsel of the postponement of the commencement time was adequate under due
process standards. Any possible resulting inconvenience to Appellants and their witnesses could
only have been fairly attributed to counsel's lack of good faith in communicating with the Board.
See State v. Stroman, 281 S.C. 508, 316 S.E.2d 395 (1984) (a party cannot complain of an error
which his own conduct has induced). Because counsel never obtained a continuance or stay of
proceedings in advance, Appellants and their witnesses should have already been prepared to appear
at the originally scheduled time and place of the hearing. The fact that the hearing was delayed a few
hours to accommodate counsel's other court appearance does not amount to a denial of due process
under all of the surrounding circumstances.
Counsel's assumption that the Petition for Review filed with the circuit court automatically
stayed any further proceedings of the Board was erroneous. First, filing a petition for review in
circuit court does not automatically stay any proceeding. See S.C. Code Ann. § 1-23-380(2) (Supp.
1997) ("The filing of the petition does not itself stay enforcement of the agency decision."). Further,
it is questionable as to whether the denial of discovery in administrative proceedings is immediately
reviewable. See S.C. Code Ann. § 1-23-380(A) (Supp. 1997) (an intermediate agency action or
ruling is immediately reviewable if review of the final agency decision would not provide an
adequate remedy) (emphasis added); Lowndes Products, Inc. v. Brower, 262 S.C. 431, 205 S.E.2d
184 (1974) (whether a party is prejudiced by denial of discovery can best be determined in light of
the subsequent developments in the trial); see also Ross v. Medical University of South Carolina,
328 S.C. 51, 492 S.E.2d 62 (1997) (denial of requested discovery did not prejudice party where he
did not establish that his inability to depose a witness or gain access to material substantially
hindered his ability to respond to the charges against him). Even if such an order is immediately
reviewable under section 1-23-380(A), the Administrative Law Judge Division, not the circuit court,
would have jurisdiction over any direct appeal from the Board. S.C. Code Ann. § 1-23-380(B)
(Supp. 1997).
Appellants also assert that counsel's federal court appearance required the Board to cancel
the February 19 hearing. Rule 601(b), SCACR states "[w]hen times set for appearance before state
and federal courts are in conflict, appearance shall have such priority as is appropriate." This gives
both tribunals discretion to determine which hearing should have priority under all of the
surrounding circumstances. Nothing in Rule 601, SCACR mandates that one tribunal always be
given priority over the other. Rather, Rule 601(b) requires "[c]ourts [not just state courts] and
counsel . . . to adjust schedules to accord with the spirit of comity between the state and federal
courts." Further, Rule 601(c) states that an attorney who cannot make a scheduled appearance shall
notify the affected tribunals as soon as the conflict becomes apparent. Counsel failed to comply with
this requirement. In this case, the Board's hearing had been noticed to the parties prior to any
notice of the federal court hearing being issued to counsel. Additionally, counsel gave the Board
almost no advanced notice of the conflict and the extent of his required attendance in federal court.
In spite of these circumstances, and based upon the limited information about the federal court
conflict, the Board accommodated counsel by postponing the hearing for a reasonable period of time
to permit counsel to attend his federal court hearing and then appear before the Board. The Board
acted well within its discretion under Rule 601(b), SCACR. Further, under the totality of the
circumstances, the Board gave Appellants ample opportunity to be heard at a meaningful time and
in a meaningful manner, satisfying the fundamental requirement of due process. See South Carolina
National Bank v. Central Carolina Livestock Market, Inc., 289 S.C. 309, 345 S.E.2d 485 (1986),
citing Armstrong v. Manzo, 380 U.S. 545 (1965).
Appellants also assert that they should have been given additional time to obtain review of
the Board's denial of their discovery requests and to conduct discovery thereafter. Upon learning
of the Board's denial of discovery requests, it was incumbent upon counsel to request a continuance
or stay or proceedings if he thought he would not have adequate time to prepare for the February 19
hearing. Further, had the Board been given the opportunity to rule on a continuance request, such
a ruling would have been discretionary with the Board. See First Savings Bank v. McLean, 314 S.C.
361, 444 S.E.2d 513 (1994). Notably, Appellants had already been granted two continuances prior
to the scheduling of the February 19 hearing. Moreover, the Board tried to accommodate counsel's
schedule. Therefore, the Board did not abuse its discretion in going forward with the February 19
hearing.
Issues III and IV
Because Appellants failed to appear at the February 19 hearing to avail themselves of the
opportunity to present a defense, the question of whether they were entitled to conduct formal pre-hearing discovery has become moot. See Lowndes Products, Inc. v. Brower, 262 S.C. 431, 205
S.E.2d 184 (1974) (whether a party is prejudiced by denial of discovery can best be determined in
light of the subsequent developments in the trial); Ross v. Medical University of South Carolina, 328
S.C. 51, 492 S.E.2d 62 (1997) (denial of requested discovery did not prejudice party where he did
not establish that his inability to depose a witness or gain access to material substantially hindered
his ability to respond to the charges against him); see also Byrd v. Irmo High School, 321 S.C. 426,
468 S.E.2d 861 (1996) ("'A case becomes moot when judgment, if rendered, will have no practical
legal effect upon [an] existing controversy.'"); Dodge v. Dodge, 332 S.C. 401, 505 S.E.2d 344 (Ct.
App. 1998) ("[C]ourts will not issue advisory opinions on questions for which no meaningful relief
can be granted.").
ORDER
IT IS THEREFORE ORDERED that the decision of the State Board of Architectural
Examiners is affirmed.
AND IT IS SO ORDERED.
____________________________________
ALISON RENEE LEE
Administrative Law Judge
January 15, 1999
Columbia, South Carolina.
1. As indicated by the electronic imprint on the faxed document. |