ORDERS:
ORDER
This is an appeal from a Final Order issued on February 22, 2006 by the South Carolina Board of Medical Examiners (The Board) of the South Carolina Department of Labor, Licensing and Regulation. The Board found that Sam Wayne Vetro, M.D. (Appellant or Dr. Vetro), violated S.C. Code Ann. §§ 40-47-200(F)(3), (F)(6) and (F)(8) (2001) in the following particulars:
(i) He is addicted to alcohol or drugs to such a degree as to render him unfit to practice medicine, as evidenced by his addiction to opiates;
(ii) He has sustained a physical or mental disability which renders further practice dangerous to the public as evidenced by his addiction to opiates;
(iii) He engaged in dishonorable, unethical, or unprofessional conduct that is likely to deceive, defraud, or harm the public, as evidenced by his addiction to opiates.
Oral arguments were heard on the merits of this appeal on October 5, 2006.
FACTUAL BACKGROUND
Appellant, Dr. Sam Vetro, has a history of chemical dependence or addiction problems dating back to at least 1998. In 1999, the Medical Board issued an Order suspending Dr. Vetro’s license indefinitely, but staying the suspension as long as Appellant complied with certain terms and conditions, primarily related to his remaining free of alcohol and drugs, and his participation in an approved aftercare program.
On September 14, 2005, a Formal Complaint was filed against Appellant by the State Board of Medical Examiners, charging Appellant with several violations of the Medical Practice Act, S.C. Code Ann. § 40-47-5 et seq. (2001 and Supp. 2005). The complaint alleged that Dr. Vetro committed the following acts:
1. That Dr. Vetro joined the Recovering Professional’s Program (RPP) due to his crack cocaine addiction on April 25, 2000 and was discharged from the program on or about February 6, 2004.
2. That Dr. Vetro self-reported a relapse and rejoined the RPP on or about September 29, 2004. That Dr. Vetro then entered the Lighthouse for detoxification and began Intensive Outpatient Treatment at Shepherd’s Center in Conway, South Carolina.
3. That Dr. Vetro relapsed again in January of 2005 and was again admitted to the Lighthouse for detoxification.
4. That on or about January 24, 2005, Dr. Vetro reported to Talbott Recovery Center in Atlanta, Georgia due to his crack cocaine addiction. That Dr. Vetro relapsed again in February, 2005, and was enrolled in the COPAC program May 23, 2005.
5. That Dr. Vetro was discharged from COPAC on June 22, 2005 with a diagnosis of cocaine dependence, occupational problems, and suicidal ideation.
6. That on or about September 9, 2005, Dr. Vetro tested positive for cocaine and admitted having smoked crack cocaine over the Labor Day weekend. That when Dr. Vetro refused further long-term recovery enrollment, he was discharged from the RPP for non-compliance.
The Complaint further alleges that as a result of the misconduct alleged above, Dr. Vetro has violated S.C. Code Ann. § 40-47-200(F) (2001) and S.C. Code Ann. Regs. 81-60(A) (Supp. 2005) in the following particulars:
1. Dr. Vetro violated Section 40-47-200(F)(3) and Regulation 81-60(A) in that he is addicted to crack cocaine to such a degree as to render Dr. Vetro unfit to practice medicine.
2. Dr. Vetro violated Section 40-47-200(F)(6) and Regulation 81-60 in that he suffers from a physical or mental disability which renders further practice by the Respondent dangerous to the public.
3. Dr. Vetro violated Section 40-47-200(F)(8) and Regulation 81-60 in that he has engaged in dishonorable, unethical, or unprofessional conduct that is likely to deceive, defraud, or harm the public.
The Appellant signed and entered into a Memorandum of Agreement and Stipulations (MOA) on December 28, 2005. In the MOA, Dr. Vetro waived formal hearing procedures and requested that the matter be disposed of pursuant to S.C. Code Ann. § 1-23-320(f), in lieu of, inter alia, a Panel Report of the Medical Disciplinary Commission. Dr. Vetro also agreed to participate in a Final Order Hearing pursuant to S.C. Code Ann. § 40-47-200 (2001 and Supp. 2005) and S.C. Code Ann. Regs. § 81-17 (Supp. 2005) at such time as the Board shall require for the purpose of determining an appropriate sanction. Further, Dr. Vetro stipulated and admitted to committing all of the acts alleged in the September 14, 2005 complaint referenced above. Lastly, Dr. Vetro admitted that these acts present grounds that constitute misconduct.
The matter came before the Medical Board for a Final Order hearing on February 8, 2006. Dr. Vetro appeared without counsel. After reviewing the Memorandum of Agreement and Stipulations and the statements of Appellant at the hearing, the Board determined that Appellant’s license to practice medicine should be revoked. A written Order to that effect was issued on February 22, 2006. The appeal to this Court followed.
STANDARD OF REVIEW
Jurisdiction on appeal is vested in the Administrative Law Court (ALC or Court) pursuant to the Administrative Procedures Act (APA), specifically S.C. Code Ann. § 1-23-600(D) (2005) and S.C. Code Ann. § 40-1-160 (2001 and Supp. 2005). On appeal to the ALC, the standard of review is limited to the record presented. The APA governs the reasons an appellate body may reverse or modify an agency decision. That section provides:
The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative 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) (2005).
An Administrative Law Judge may not substitute his 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) (2005); Lark v. Bi-Lo, Inc., 276 S.C. 130, 132-133, 276 S.E.2d 304, 305 (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, 641, 321 S.E.2d 63, 68 (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. See 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. See Waters v. South Carolina Land Resources Conservation Comm'n, 321 S.C. 219, 467 S.E.2d 913 (1996); see also 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, 519, 466 S.E.2d 357, 359 (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. See Grant, 319 S.C. at 353, 461 S.E.2d at 391 (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. See Waters, 321 S.C. at 226, 467 S.E.2d at 917.
STATEMENT OF ISSUES ON APPEAL
1. Whether the Board’s decision was made in violation of constitutional and statutory provisions or other error of law.
2. Whether the Board’s decision below was erroneous in view of the reliable, probative, and substantial evidence on the whole record.
3. Whether the Board’s decision below was arbitrary and capricious and a clear abuse of discretion.
ANALYSIS
Violation of Constitutional and Statutory Provisions or Other Error of Law
Appellant first argues that the Board’s decision was in violation of its own enabling legislation and regulations. Appellant asserts, citing S.C. Code Ann. Regs. 81-12.5 (Supp. 2005), that any disciplinary proceeding must be initiated by the filing of an initial complaint which must be in proper form and verified under oath and must be filed with the Executive Director of the Board who shall immediately cause a preliminary investigation to be prepared and promptly prepare the same for presentation to the Board. Appellant claims that there is no indication in the record as to whether the Board ever reviewed the initial complaint or whether a verified initial complaint was ever received by the Board.
Importantly, Appellant failed to raise this issue before the Board and it is well-settled that an issue cannot be raised for the first time on appeal, but must have been raised to and ruled upon by the trial court to be preserved for appellate review. Ellie, Inc. v. Miccichi, 358 S.C. 78, 102, 594 S.E.2d 485, 498 (Ct. App. 2004). Therefore, this issue is not properly before this Court. However, to the extent a reviewing Court may find it properly before this Court, I will address this issue fully.
In response to Appellant’s contentions, Respondent argues that there is nothing in the record to indicate whether the regulation was complied with or not, and the Board does not concede that any of Appellant’s allegations of noncompliance are correct. Respondent further argues that it does not matter whether these preliminaries were complied with, because when Appellant executed the Memorandum of Agreement and Stipulations, he waived the right to complain of any deficiencies in preliminary proceedings. Respondent argues that since Appellant admitted the allegations set forth in the MOA and waived formal hearing procedures, that Appellant effectively waived the right to make any argument to the Board except an argument at the Final Order hearing as to the nature of the sanction. Respondent states that Appellant both expressly and impliedly thereby waived all alleged defects in any preliminary aspect of the proceeding. Respondent claims that in this respect, this case should be governed by a rule analogous to that used in guilty plea situations. Lastly, Respondent argues that Appellant has also waived this issue by not raising it before the Board.
In a case such as this one, procedural due process rights must be met when the State seeks to revoke a professional license. South Carolina Dep’t of Labor, Licensing and Regulation v. Girgis, 332 S.C. 162, 166, 503 S.E.2d 490, 492 (Ct. App. 1998). “The fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner.” Id., quoting South Carolina Dep't of Soc. Servs. v. Holden, 319 S.C. 72, 78, 459 S.E.2d 846, 849 (1995). Due process does not mandate any particular form of procedure. Id. Certain minimum elements, however, must be present, including (1) adequate notice; (2) adequate opportunity for a hearing; (3) the right to introduce evidence; and (4) the right to confront and cross-examine witnesses. Id., citing Huellmantel v. Greenville Hospital System, 303 S.C. 549, 402 S.E.2d 489 (Ct.App.1991). Section 1-23-320 of the APA requires that a party in a contested proceeding be provided with notice which includes, inter alia:
(1) a statement of the time, place and nature of the hearing;
(2) a statement of the legal authority and jurisdiction under which the hearing is to be held;
(3) a reference to the particular sections of the statutes and rules involved;
(4) a short and plain statement of the matters asserted. If the agency or other party is unable to state the matters in detail at the time the notice is served, the initial notice may be limited to a statement of the issues involved. Thereafter, upon application, a more definite and detailed statement shall be furnished.
S.C.Code Ann. § 1-23-320(b) (2005).
In the instant case these requirements have been met. Appellant was served with a Formal Complaint dated September 14, 2005. This complaint states very specifically the nature of the charges against Appellant. The Court of Appeals in Girgis made it clear that the complaint does not have to set forth the nature of the charges “in great detail.” See Girgis, 332 S.C. 162 at 168, 503 S.E.2d 490 at 493. However, it appears in this case that the nature of the charges were set forth in great detail. The fact that an “initial complaint” may not have been issued pursuant to S.C. Code Ann. Regs. 81-12.5 in no way affects Appellant’s due process rights in this case. Appellant was served with a Complaint and a Notice indicating that he must respond to the Complaint dated September 14, 2005. Appellant was also served with an Order of Temporary Suspension dated September 15, 2005 and an accompanying Affidavit and Notice of Right to Hearing dated September 14, 2006. Further, Appellant signed and entered into a Memorandum of Agreement and Stipulations on December 28, 2005, thereby waiving formal hearing procedures. Therefore, Appellant received adequate notice of the charges against him.
However, in Girgis, the Court reversed the decision of the Board and remanded the case in order that the Board provide Dr. Girgis with a copy of the initial complaint. This case may be distinguished from Girgis in that there is no evidence that an initial complaint ever existed. While the mandates of S.C. Code Ann. Regs. 81-12.5 may not have been strictly followed, this action is not a violation of due process. Also, unlike in Girgis, there are no disclosure issues involved. The Court in Girgis remanded that case because Dr. Girgis was not provided with a copy of the initial complaint, which included a list of the persons who had logged complaints against him. There is no such list and no such people in this case, and no benefit would flow from remanding this case based on this issue. The Affidavit dated September 14, 2006 and the Order of Temporary Suspension dated September 15, 2005 appear to be the documents that initiated this matter before the Board, and Appellant was served a copy of both documents. Unlike Dr. Girgis, Appellant was not prohibited normal access to the charges and evidence filed against him as a part of due process under the law. See Girgis, 332 S.C. 162 at 169, 503 S.E.2d 490 at 493-494 (citing S.C. Code Ann. §40-47-212 (1986)). I find the alleged failure to file an initial complaint is immaterial in this case.
Waiver made by Appellant
Appellant argues that his waiver, without the advice of counsel, of formal hearing procedures regarding his cocaine addiction was not permissible under S.C. Code Ann. § 1-23-320(f) because the waiver was not an informed decision after adequate disclosure. Appellant’s argument is primarily based on the fact that the Formal Complaint dated September 15, 2005 made no mention of opiate abuse while the Final Order dated February 22, 2006 did. This issue will be addressed in detail below.
Final Order Contains Sufficiently Detailed Findings of Fact and Conclusions of Law
Appellant argues that the Board has failed to provide the Court with detailed findings of facts and conclusions of law in compliance with S.C. code Ann. § 1-23-320(f). Respondent argues that the Findings of Fact and Conclusions of Law in the Final Order are sufficiently detailed.
The general rule is that “[a]n administrative body must make findings which are sufficiently detailed to enable [a reviewing court] to determine whether the findings are supported by the evidence and whether the law has been applied properly to those findings.” Porter v. South Carolina Public Service Comm’n, 332 S.C. 93, 99, 504 S.E.2d 320, 323 (1998). Respondent further argues that Porter suggests that there are two different standards, one for cases in which the facts are in dispute, and the other for cases in which there is no factual dispute. Id. (“[w]here material facts are in dispute, the administrative body must make specific, express findings of fact”) (emphasis added).
Respondent argues that there are no material facts in dispute in this case and that under either standard the Final Order suffices.
Appellant’s argument on this point seems to be heavily based on the Board’s Final Order which referenced an opiate addiction instead of a cocaine addiction. This issue will be addressed in detail below. Absent the issues present with the references to opiates, I find that the Findings of Fact and Conclusions of Law in the Board’s Final Order were sufficiently detailed to enable this Court to determine whether the findings are supported by the evidence and whether the law has been applied properly to those findings.
Alleged ADA Violations
Appellant alleges that the Board has violated Federal Law by sanctioning Appellant for a past opiate addiction. Citing the Americans with Disabilities Act and the Rehabilitation Act, Appellant argues that these Acts, when read together, prohibit discrimination against any person for a past drug addiction problem for which he or she was successfully treated. To make this argument, Appellant relies heavily upon the fact that the Final Order issued by the Board revokes Appellant’s license to practice medicine for his prior opiate addiction, for which he has been treated, instead of revoking Appellant’s license for his current cocaine addiction.
This issue was not raised before the Board and it is well-settled that an issue cannot be raised for the first time on appeal, but must have been raised to and ruled upon by the trial court to be preserved for appellate review. See Ellie, Inc., supra. Therefore, this issue is not properly before this Court. However, even if this issue were properly before this Court, it is without merit.
The ADA defines “qualified individual with a disability” in pertinent part as “an individual with a disability who, with or without reasonable modifications to rules, policies or practices…meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity.” 42 U.S.C. § 12131(2). Respondent argues that the same section further provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” Id., (emphasis added). Respondent further cites a Michigan federal case which held:
[I]t is questionable whether the [state Medical] Board’s duty to license physicians can be characterized as a “service” being denied to plaintiff or whether the Board’s refusal to reinstate his license denies him participation in “programs or activities provided” by a state entity. The Board of Medicine is, if anything, a service, program or activity provided for the public’s benefit and safety, not for the benefit of any given individual who does not meet the state’s requirements for practicing medicine.
Alexander v. Margolis, 921 F.Supp. 482, 488 (W.D. Mich. 1995). I agree with the rationale of the Alexander case and find that Appellant is not an individual qualified to receive ADA protection in this situation. Therefore I find that Appellant’s arguments based on the Americans with Disabilities Act and the Rehabilitation Act are without merit.
Board’s Decision was Erroneous
Appellant argues that there is absolutely no evidence in the record that Appellant suffers from a current problem with the use of opiates. Appellant claims that the Board has bottomed its entire Order on the unsubstantiated conclusions in Conclusion of Law 2(A), (B) and (C) ….” as evidenced by his addiction to opiates.” Appellant asserts that there is no mention in the Board’s Conclusion of Law that Appellant is a danger to his patients because of his past use of cocaine.
Appellant further argues that when the Board lured Appellant into proceeding without an evidentiary hearing, it not only stripped Appellant of his ability to offer expert testimony as to the difference between cocaine and opium, but it also denied itself the right to stray from the agreed-upon MOA. Appellant claims that these actions denied Appellant the opportunity to refute the Board’s bald statements and denies this Court a record upon which to review them.
Respondent argues that assuming cocaine is in fact not an opiate, any error in the Final Order is still a harmless error. Respondent claims that Appellant admitted, and that the Board was clearly aware, that Appellant was addicted to cocaine or crack cocaine. Respondent states that the fact of this specific addiction to cocaine is found many times in the record. Respondent argues that given this overwhelming and often-reiterated proof of cocaine addiction, there is simply no chance that the Medical Board mistakenly thought Appellant was addicted to anything other than cocaine. Respondent further argues that since there was no realistic chance of the Board actually being in error about the drug to which Appellant was addicted, the mention of opiates in the Final Order, even if factually erroneous, is not an error affecting a substantial right, and therefore is harmless error at most.
Harmless Error is defined in Rule 61 of the South Carolina Rules of Civil Procedure as follows:
Rule 61
HARMLESS ERROR
No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order or in anything done or omitted by the court or by any of the parties is ground for granting a new trial or for setting aside a verdict or for vacating, modifying or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.
(Emphasis added.)
This rule deems errors or defects in any ruling or order harmless and allows only for action to be taken by an appellate court where the refusal to take such action appears to the court inconsistent with substantial justice. While there are no South Carolina state cases directly on point discussing the meaning of the phrase “inconsistent with substantial justice” in SCRCP 61, there are several 4th Circuit cases discussing the meaning of that phrase in the Federal Rules of Civil Procedure on which South Carolina’s rules are based.
Rule 61 of the Federal Rules of Civil Procedure, which is intended for the guidance of the district court and is given effect also by the courts of appeals, provides that no error in any ruling is a ground for disturbing a judgment unless refusal to take such action appears to the court inconsistent with substantial justice; and the courts of appeals are directed to give judgment without regard to harmless errors which do not affect the substantial rights of the parties. Blum v. Cottrell, 276 F.2d 689, 693-694 (4th Cir. 1960).
“[I]n order to find a district court's error harmless, we need only be able to say ‘with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error.’” United States v. Davis, 67 Fed.Appx. 771, 2003 WL 21019347 (4th Cir. 2003), citing United States v. Brooks, 111 F.3d 365, 371 (4th Cir. 1997) (citations omitted).
Respondent, as the party asserting harmless error in this case and therefore the beneficiary of the error, has the burden to show that the error almost surely did not affect the outcome of the case. See Persinger v. Norfolk & Western Railway Co., 920 F.2d 1185, 1189 (4th Cir. 1990) (holding that “…in harmless error analysis the beneficiary of the error has the burden to show that the error almost surely did not affect the outcome of the case.”). Respondent has argued that the outcome would have been the same in this case and that just the name of the drug on which the outcome was based would change. Based on the record, I find this argument unpersuasive. I find that the references to opiates made by the Board in its Final Order issued February 22, 2006 amount to glaring inconsistencies when compared to the Complaint and Memorandum of Agreement executed in this matter.
Opiates and cocaine are both Schedule II narcotic drugs; however, the two drugs are clearly separate and distinct. See S.C. Code Ann. 44-53-110 (Supp. 2005) (which includes coca leaves and opiates as separate narcotic drugs under the definition of narcotic drugs and which further defines opiate and the definition of opiate does not mention coca leaves); S.C. Code Ann. § 44-53-210 (Supp. 2005) (separating opiates from coca leaves – including any salt, compound, derivative, or preparation of coca leaves); see also State v. Horton, 359 S.C. 555, 598 S.E.2d 279 (Ct. App. 2004) (recognizing a difference between opiates and cocaine). Further, “cocaine base” means an alkaloidal cocaine or freebase form of cocaine, which is the end product of a chemical alteration whereby the cocaine in salt form is converted to a form suitable for smoking. See S.C. Code Ann. § 44-53-110 (Supp. 2005). Cocaine base is commonly referred to as "rock" or "crack cocaine". Id.
It is clear that South Carolina treats opiates, cocaine and crack cocaine as different drugs, therefore any argument that they are the same is without merit. Further, since Appellant had a prior addiction to opiates and not a prior addiction to crack cocaine, it is unclear whether the Board based its decision to revoke Appellant’s license on a prior addiction for which Appellant has already been disciplined, or whether the Board intended to base its decision on Appellant’s more recent problems, but incorrectly referred to opiates instead of referring to crack cocaine. I find that either alternative is inexcusable. I also find that Respondent did not carry its burden of showing that the error almost surely did not affect the outcome of the case. See Persinger, supra. I believe this error did affect the outcome of the case, and therefore is not harmless. The decision by the Board was obviously swayed by the error and it would be inconsistent with substantial justice for this Court to refuse to take action. See Davis, supra; see Blum, supra; see also SCRCP 61. Based on the foregoing, I find the Board’s decision in this case was erroneous. I further find that this matter should be remanded to the Board so that this issue may be properly addressed.
Board’s Decision is Arbitrary and Capricious and an Abuse of Discretion
Appellant asserts that based on his arguments above, and based on the fact that the Formal Complaint contains no reference to opiates at all, the Board tried Appellant on charges not alleged in its Formal Complaint. Appellant argues that this action, coupled with a comparison of the Board’s recent decisions regarding impaired physicians, renders the Board’s decision in this matter arbitrary and capricious.
“A decision is arbitrary if it is without a rational basis, is based alone on one's will and not upon any course of reasoning and exercise of judgment, is made at pleasure, without adequate determining principles, or is governed by no fixed rules or standards.” Deese v. South Carolina State Bd. of Dentistry, 286 S.C. 182, 184-185, 332 S.E.2d 539, 541 (Ct. App. 1985). While this Court may not necessarily agree with the Board's sanctions, it may not substitute its judgment for that of the Board. Id., 286 S.C. at 184, 332 S.E.2d at 541. Alleged disparate treatment affords no basis for reversal of a Board's sanctions. Id., 286 S.C. at 185, 332 S.E.2d at 541. An agency need not exercise its discretion identically in every case. Id. A penalty that is within the authority of the agency is not rendered invalid in a particular case because it is more severe than sanctions imposed in other cases and mere unevenness in the application of the sanction does not render its application in a particular case unwarranted in law. Id.
Based on the standard set forth in Deese, I find that Appellant’s argument based on a comparison of the Board’s decisions regarding other impaired physicians is without merit. However, I further find that the Board’s order revoking Appellant’s license to practice medicine based on an addiction to opiates, when the formal complaint made no mention of an addiction to opiates, is arbitrary and capricious because it is without a rational basis and amounts to an abuse of discretion by the Board. Id., 286 S.C. at 184-185, 332 S.E.2d at 541; see also Kennedy v. Griffin, 358 S.C. 122, 130, 595 S.E.2d 248, 252 (Ct. App. 2004) (holding, “An abuse of discretion occurs when the trial court's ruling is based on an error of law or, when grounded in factual conclusions, is without evidentiary support.”). Therefore, this matter should be remanded to the Board so that the Board may properly address this issue for the reasons set forth above.
CONCLUSION
Based on the foregoing, I conclude that the Board’s decision in this matter was erroneous, arbitrary and capricious, and an abuse of discretion. I further conclude that the improper references to opiate addiction in the Final Order issued by the Board amounted to glaring inconsistencies. I conclude that a remand to the Board is appropriate so that the glaring inconsistencies referenced above may be properly addressed.
ORDER
IT IS THEREFORE ORDERED that this matter shall be REMANDED to the South Carolina Department of Labor, Licensing and Regulation, State Board of Medical Examiners so that the glaring inconsistencies present in its Final Order issued on February 22, 2006 may be addressed.
IT IS FURTHER ORDERED that any issue raised by Appellant which was not fully addressed above is deemed without merit and therefore DENIED.
AND IT IS SO ORDERED.
______________________________
JOHN D. MCLEOD
Administrative Law Judge
December 7, 2006
Columbia, South Carolina
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