ORDERS:
ORDER
STATEMENT OF THE CASE
Appellant, Roger E. Adler, M.D., appeals the Final Order of the South Carolina Board of Medical Examiners (Board) in which his license to practice medicine was revoked. Appellant alleges that decision was issued in error. The Administrative Law Court (ALC) has jurisdiction to hear this matter pursuant to S.C. Code Ann. § 1-23-600 (Supp. 2005).
ISSUES ON APPEAL
1. Was the permanent revocation of Appellant’ license void as a matter of law because it was imposed by a minority vote of the total membership of the Medical Board?
2. Did the Appellant waive his right to appeal when he did not raise the issue concerning the interpretation of S.C. Code Ann. § 40-47-200(E) at or after the final order hearing or in his petition for rehearing?
3. Did the Appellant waive the application of S.C. Code Ann. § 40-47-200(E) when he signed the Memorandum of Agreement and Stipulations (MOA) and agreed to an informal disposition of the case with only the sanction at issue?
STANDARD OF REVIEW
As set forth above, this case is before the Court as an appeal of an agency action pursuant to S.C. Code Ann. § 1‑23‑600(D) of the Administrative Procedures Act (APA) upon appeal from a Final Order of the Department. As such, the Administrative Law Judge sits in an appellate capacity under the APA rather than as an independent finder of fact. In South Carolina, the provisions of the APA -- specifically Section 1-23-380(A)(6) -- govern the circumstances in which an appellate body may reverse or modify an agency decision. That section states:
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) (Supp. 2005).
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 “substantial evidence” rule to mean that a decision will not be set aside simply because reasonable minds may differ on the judgment. Lark v. Bi-Lo, 276 S.C.130, 276 S.E.2d 304 (1981). 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. S.C. Land Resources Conservation Comm’n, 321 S.C. 219, 467 S.E.2d 913 (1996); Grant v. S.C. Coastal Council, 319 S.C. 348, 461 S.E.2d 388 (1995).
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 & Human Services 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 v. S.C. Coastal Council, 319 S.C. 348, 461 S.E.2d 388 (1995), 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, 467 S.E.2d 913 , citing Hamm v. AT&T, 302 S.C. 210, 394 S.E.2d 842 (1994).
FACTS/BACKGROUND
This case was commenced by service of a Formal Complaint with the Board on January 31, 2006, accusing Appellant of unlawfully obtaining prescriptions for controlled substances, pleading guilty to criminal drug charges and violating prior orders of the Medical Board. After the complaint was filed, Appellant entered into a Memorandum of Agreement (MOA) concerning his actions. Appellant agreed that he forged prescriptions and had them filled while under a prior order of the Board Order to remain drug-free and in compliance with his RPP contract. Moreover, Appellant’s forgery of prescriptions involved using interns under his supervision. The MOA was presented to the Board on May 23, 2006. In addition, Appellant presented mitigating evidence that his relapse was a result of taking lawfully prescribed narcotics after emergency oral surgery and that he immediately reported the relapse to the S.C. Recovering Professionals Program and underwent professional treatment at Talbott Recovery Campus from July through October 2004. Since that relapse, Appellant Walls has refrained from unlawful drug use.
After the president of the Board recused himself from the case, the Board voted five to three to revoke Appellant’s license. A Final Order revoking Appellant’s medical license was issued by the Board on June 19, 2006. Appellant thereafter petitioned the Board to reconsider the sanction imposed and the Board denied that petition by written Order dated August 25, 2006. This appeal followed.
DISCUSSION
Interpretation of S.C. Code Ann. § 40-47-200(E)
Appellant argues that the Board’s decision in this case was void because the decision was not supported by a majority vote of total members of the Board. S.C. Code Ann. § 40-47-200(E) provides that:
A decision by the board to revoke, suspend, or restrict a license or to limit or discipline a licensee must be by majority vote of the total membership of the board.
(emphasis added). The Board’s decision in this case occurred on June 19, 2006. Therefore, the total statutorily authorized membership of the Board pursuant to S.C. Code Ann. § 40-47-10 (Supp. 2005) was twelve members. However, the two additional lay members authorized by Act 171 had apparently not yet been appointed. See 2005 S.C. Acts 171. Furthermore, the seat vacated by Dr. Estes had not been filled. The Board thus had only nine active members when the Appellant was disciplined in this case. If “total membership” under Section 40-47-200(E) means the 12 authorized members, whether the seat is filled or vacant, then a vote of at least seven members of the Board was required to discipline the Appellant. On the other hand, if “total membership” means only the seats actually occupied on the day of the hearing, then only a vote of at least five members of the Board was required to discipline the Appellant.
In Smith v. Jennings, 67 S.C. 324, 45 S.E. 821 (1903), the Supreme Court shed some light upon its view of “total membership.” In Smith, the question before the Court was whether the language in Article IV, Section 23 of the South Carolina Constitution requiring a vote of “two-thirds of that house” meant two-thirds of the total membership of the respective body or simply two-thirds of the members voting upon the question. Though the Court found that “two-thirds of that house” meant two-thirds of the members voting upon the question, it is notable that in analyzing that question that the Court presumed that “total membership” meant the number of seats authorized and established by law.
Moreover, in Kesterson v. McKee, 527 S.W.2d 144 (Tenn. App. 1975), the Tennessee Court of Appeals specifically addressed whether “total membership” meant “total effective membership at the time of the particular vote, or . . . the total authorized membership.” The Court held that “total membership” means the total authorized membership. In reaching that decision the Court held that: “It matters not that certain members of the local legislative body may have resigned, died, moved from their district, or committed any other act which resulted in a total effective membership of less than the authorized membership.” Similarly, in Mann v. Key, 345 So.2d 293 (Ala. 1977), the appellant argued that “total membership” meant the total number of members who were eligible to vote at the time the vote was taken and that since the appellant and councilman Self were disqualified, the “total membership” was reduced. The Court disagreed holding that the phrase, “majority of the total membership,” covers all members of the Council whether elected or appointed. See also Waikiki Marketplace Inv. Co. v. Chair of Zoning Bd. of Appeals of City & County of Honolulu, 86 Hawaii 343, 949 P.2d 183 (Hawaii App. 1997) (The Court recognized that a majority vote of the board's total membership creates difficulties because the board may be “unable, because of vacancies, recusals, or disqualifications of its members, to obtain the necessary votes to take action.”).
The Board argues, on the other hand, that S.C. Code Ann. §§ 40-1-60(C) and 40-1-120 (B) and S.C. Code Ann. Regs. 81-21 supports an interpretation that the Board can discipline a physician based upon a vote by the seats actually occupied on the day of the hearing. Section 40-1-60(C) provides that: “A majority of the members of a board constitutes a quorum; however, if there is a vacancy on the board, a majority of the members serving constitutes a quorum.” Section 40-1-120(B) also provides that: “A decision by a board to discipline a licensee as authorized under this section must be by a majority vote of the total membership of the board serving at the time the vote is taken.” (emphasis added). However, these statutes are part of the general regulatory template of the boards administered by the Department of Labor, Licensing and Regulation, and commonly referred to as the “Engine Bill.” Section 40-47-200(E) deals with the Medical Board specifically. It essentially bridges a regulatory gap.
“The general rule of statutory construction is that a specific statute prevails over a more general one." Atlas Food Sys. & Servs., Inc. v. Crane Nat'l Vendors Div. of Unidynamics Corp., 319 S.C. 556, 558, 462 S.E.2d 858, 859 (1995). Furthermore, “[s]tatutes in apparent conflict should be construed, if possible, to allow both to stand and give effect to each.” Adoptive Parents v. Biological Parents, 315 S.C. 535, 543, 446 S.E.2d 404, 409 (1994). Therefore, the proper construction of these statutes would be that Sections 40-1-60(C) and 40-1-120(B) apply in situations in which a particular board’s governing legislation does not include a specific voting provision. In those instances the board may discipline a licensee based upon a majority vote of the total membership serving at the time the vote is taken. Here, however, since Section 40-47-200(E) specifically provides that the vote must be a majority vote of the total membership of the board, the vote by the Medical Board must be based upon the total authorized membership, whether filled or vacant.
The Board also argues that Regulation 81-21 supports an interpretation that the Board can discipline a physician based upon a vote by the actual seats actually occupied on the day of the hearing. That regulation is specific to the Medical Board. It provides that:
A majority of the members of the Board or of a hearing panel shall constitute a quorum for all purposes; and the action of a majority of those present comprising such quorum shall be the action of the Board or of such hearing panel.
However, again Regulation 81-21 is broader in its scope and does not specifically deal with the disciplinary process. S.C. Code Ann. § 40-47-10 provides that the Board may take votes on numerous duties within the Board’s purview. In these instances the default voting procedure would be as set forth in the “Engine Bill,” that a majority vote by those present comprising the quorum shall authorize the Medical Board to act. However, in those instances dealing with discipline of physicians, the vote must be by majority of the authorized membership.
Finally, though not raised in its brief or during oral argument in this matter, the Board now points out that the recently-revised Medical Practice Act 385 of 2006, which took effect on June 9, 2006, provides in pertinent part that “a decision by the board to revoke, suspend, or restrict a license or to limit or discipline a licensee must be by a majority vote of the members serving.” S.C. Code 40-47-110(D) (emphasis added). “A subsequent statutory amendment may be interpreted as clarifying original legislative intent.” Stuckey v. State Budget and Control Bd., 339 S.C. 397, 401, 529 S.E.2d 706, 708 (2000). However, “[i]t will be presumed that the Legislature in adopting an amendment to a statute intended to make some change in the existing law.” Vernon v. Harleyville Mut. Cas. Co., 244 S.C. 152, 155, 135 S.E.2d 841, 844 (1964). “The Court must presume the legislature did not intend a futile act, but rather intended its statutes to accomplish something.” Denene, Inc. v. City of Charleston, 352 S.C. 208, 212, 574 S.E.2d 196, 198 (2002).
The Board argued that “[t]his revision makes the new Medical Practice Act identical to the Engine and clearly shows a legislative intent to bring the old Medical Practice Act into alignment with the Engine.” I agree with that proposition. However, I do not find that the revision was an expression of the original legislative intent, but rather a change to the existing law. Therefore, the revision to the Medical Practice Act does not change the reasoning set forth above.
Consideration of Section 40-47-200(E) on Appeal.
Appellant did not raise the 40-47-200(E) issue at the Final Order Hearing or in his Petition for Rehearing. The Board argues that to preserve the issue of whether the Board’s decision was properly made, the issue must be raised, with sufficient specificity by the appellant at the administrative proceeding. Therefore, the Board contends Appellant waived his right to appeal upon the 40-47-200(E) issue.
In support of its contention, the Board raises three points. First, the Board contends that its policy on requests for rehearing of final decisions requires that a licensee raise every issue in their motion for reconsideration they wish to preserve for appeal. However, a decision made outside of an agency’s statutory authority is void. Converse Power Corp. v. S.C. Dept. of Health & Envtl. Control, 350 S.C. 39, 564 S.E.2d 341 (Ct. App. 2002); see also 46 Am. Jur. 2d Judgments § 31 (1994). “A void judgment is one that, from its inception, is a complete nullity and is without legal effect. . . .” Thomas & Howard Co., Inc. v. T.W. Graham & Co., 318 S.C. 286, 457 S.E.2d 340 (1995). Recognizing the distinction between appeals based upon errors of law and void judgments, the South Carolina Rules of Civil Procedure set forth that a court may relieve a party from a void judgment within a reasonable time. SCRCP 60(b); see also McDaniel v. U.S. Fidelity & Guar. Co., 324 S.C. 639, 478 S.E.2d 868 (Ct. App. 1996) (addressing the disagreement among the various federal and state jurisdictions as to whether the reasonable time requirement should be imposed on motions which attack a judgment as void). Here, the appeal regarding this issue was certainly made within a reasonable time.
Furthermore, the Board can not apply its “reconsideration policy” as a “binding norm” unless the Board promulgates the policy as a regulation. Home Health Serv., Inc. v. S.C. Tax Comm'n, 312 S.C. 328, 440 S.E.2d 375 (1994). Therefore, the Board’s policy is not binding upon the Appellant. Moreover, if the Board intended that the policy be binding upon the parties, its application would be invalid because the policy was not promulgated as a regulation in compliance with the Administrative Procedures Act. Captain's Quarters Motor Inn, Inc., v. S.C. Coastal Council, 306 S.C. 488, 413 S.E.2d 13 (1991).Accordingly, since the policy was not promulgated and thus was not binding upon Appellant, it can not be considered to express binding requirements to perfect an appeal. Moreover, the Policy states that requests for rehearings must “state the particular points supposed to have been overlooked or misapprehended by the Board in the previous decision in the matter.” That language does not mandate that all issues upon which a party wishes to appeal must be made in a motion for reconsideration.
Respondent also contends that Appellant waived the application of S.C. Code Ann. § 40-47-200(E) when he signed the memorandum of agreement and stipulations (MOA). In other words, the Board contends that allegations in the Formal Complaint became admissions in the MOA and the proceedings are no longer “contested.” In the Memorandum of Agreement, Appellant agreed to dispose of the matter pursuant to S.C. Code § 1-23-320(f) (Supp. 2005). Section 1-23-320(f) provides that: “Unless precluded by law, informal disposition may be made of any contested case by stipulation, agreed settlement, consent order or default.” Here, however, Appellant did not settle the entire case, but rather, choose not to contest the allegations and appear before the Board to present mitigating evidence. The MOA thus avoided the necessity for a panel hearing but equally reserved the right to appear before the Board to present mitigating evidence concerning the appropriate sanction. Obviously, that portion of the case remained “contested.” Therefore, Appellant was entitled to all the protections afforded by the Administrative Procedures Act and due process in contesting the sanction to be given by the Board.
Finally, Respondent contends that the Court’s holding in Ewing v. State Board of Medical Examiners, 290 S.C. 89, 348 S.E.2d 361 (1986), requires that any challenge to the composition of the Board must be made at the administrative hearing. However, what Ewing specifically held was that:
Prior to the Board's decision, appellant never challenged its composition, nor did he attempt to challenge it before the lower court. Having failed to raise the issue either at the agency level or in the lower court, appellant clearly has waived the issue.
Ewing, therefore, does require that a challenge to the composition of the Board must be made prior to the Board’s decision. Rather, the Court required the challenge be made at the agency proceeding or at the first level of appeal. The ALC is now the first level of appeal from the Board’s decision and thus such a challenge would properly be made to the ALC.
More importantly, the Appellant’s objection to the Board’s determination in this case is distinguishable from an objection to the composition of the Board. Here, Appellant is arguing that the Board was without authority in making its determination. “An administrative agency has only such powers as have been conferred by law and must act within the authority granted for that purpose.” S.C. Dept. of Natural Res. v. McDonald, 367 S.C. 531, 626 S.E.2d 816 (Ct. App. 2006). Thus, a decision issued without that authority is void.
Findings by the Board
In determining that this case should be remanded to the Board, I find that comment upon the Board’s findings is warranted. The Board’s Final Order sets forth within the Conclusions of Law that the Board determined the sanction after “weighing the public interest and the need for the continuing services of qualified medical doctors against the countervailing concern that society be protected from professional ineptitude and misconduct.” I agree with the Board that an Administrative Law Judge may not substitute his judgment for that of the agency unless the agency’s determination is affected by an effort of law or is clearly erroneous in view of the reliable, probative, and substantial evidence in the whole record. See Lark v. Bi-Lo, Inc., 276 S.C. 130, 276 S.E.2d 304 (1981). However, in Wilson v. State Board of Medical Examiners, 305 S.C. 194 , 406 S.E.2d 345 (1991), the Supreme Court, recognizing its previous holdings that the revocation a physician’s license should not be calculated to punish the physician but “to protect the life, health and welfare of the people at large,” further held that the Board must:
meticulously weigh the public interest and the need for the continued services of qualified medical doctors against the countervailing concern that society be protected from professional ineptitude.
406 S.E. 2d at 346 (emphasis added).
The Board’s Final Order asserts nearly verbatim that it performed that function. Its simple assertion that it weighed the Wilson factors, however, is simply not sufficient. In cases involving the revocation of a physician’s license, the Board must not only set forth a factual basis upon which its discretion was exercised, but that factual basis must be supported by a thorough weighing of the Wilson factors. Here, though the Board could very well have weighed all these factors and determined nonetheless that the need for public protection outweighed its need for the Appellant’s services, it did not explain that reasoning. In other words, the Board did not clearly set forth the facts it believed outweighed the need for the Appellant’s continued service. Rather, the Board simply set forth the aggravating circumstances without addressing the mitigating circumstances and facts in evidence. Therefore, as our Supreme Court did in Wilson and in Huber v. State Board of Physical Therapy Examiners, 316 S.C. 24, 446 S.E.2d 433 (1994), I implore the Board to “meticulously weigh” the Wilson factors in reaching its decision.
Therefore,
IT IS HEREBY ORDERED that this case is REMANDED to the Medical Board for a reconsideration of this matter in keeping with this Order.
AND IT IS SO ORDERED.
______________________________
Ralph King Anderson, III
Administrative Law Judge
December 21, 2006
Columbia, South Carolina
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