ORDERS:
ORDER
This matter comes before me on Motion of the Department of Health and
Environmental Control (“DHEC”) for this Court to enforce its Order dated October 3,
2003 and find Ms. Alfreda Thompson in contempt for failing to submit payment as
required by that Order. A hearing on this Motion was held before me at the
Administrative Law Court on October 20, 2004.
FINDINGS OF FACT
Having observed the witnesses and exhibits presented at the hearing and closely
passed upon their credibility, taking into consideration the burden of persuasion by the
parties, I make the following Findings of Fact by a preponderance of evidence:
1.Notice of the time, date, place and subject matter of the hearing was given to the
Petitioner and the Respondent.
2.This Court’s Order issued October 3, 2003 incorporated a Consent Agreement
entered into by Ms. Thompson and the Department. The Consent Agreement suspended
$5,000 of the original $10,000 civil monetary penalty in exchange for Ms. Thompson’s
withdrawal of the action and agreement to pay the $5,000 penalty according to the terms
of the Agreement. This Consent Agreement was voluntarily entered into by all of the
parties.
3.The Consent Agreement required that Ms. Thompson submit payment of $5,000
in two payments of $2,500 each with the first payment due November 3, 2003 and the
second payment due December 3, 2003.
4.Mr. Dennis Gibbs, Director of the Division of Licensing, testified that when
payment was not received as provided in the Consent Agreement and Order, the
Department sent Ms. Thompson follow-up letters requesting payment on November 21,
2003, January 14, 2004.
5.The Department did not receive any payment in response to these letters. The
Department is still holding the additional $5,000.00 in suspense and has not requested
payment of this amount even though Ms. Thompson violated the terms of the Consent
Agreement.
6.Ms. Thompson testified that she has not complied with this Agreement and has
not submitted any payment to the Department as required by the Agreement. Ms.
Thompson stated that she was unable to get a second mortgage for her home so she did
not pay the civil monetary penalty. Ms. Thompson admitted that she never contacted the
Department regarding the penalty. Ms. Thompson is currently attending Midlands Tech
and working at Beaufort Memorial Hospital. She testified that she needed time to
reestablish herself financially.
7.During a break in the hearing, the Department and Ms. Thompson were able to
reach a new mutually acceptable agreement regarding payment of the penalty amount.
This agreement requires Ms. Thompson to pay $100.00 per month for twelve months,
then two payments of $1900.00 each. The $100.00 payments are due on or before the 20th
of each month with the first payment due on November 20, 2004. Ms. Thompson will
then be required to pay the remaining balance in two payments of $1900.00 with the first
payment of $1900.00 due November 20, 2005. The last payment of $1900.00 will be due
January 20, 2006. All payments are to be submitted directly to the Department. After the
break, the Parties returned to the courtroom and placed this agreement on the record.
8.The Department additionally agreed not to call in the suspended $5,000 if Ms.
Thompson abides by the new payment agreement.
9.I find that the parties freely and voluntarily entered into this new agreement and I
hereby incorporate their payment agreement into this Order.
CONCLUSIONS OF LAW
Based upon the above Findings of Fact, I conclude the following as a matter of
law:
1.The South Carolina Administrative Law Court is authorized to hear this Motion
for Contempt pursuant to S. C. Code Ann. Sections 1-23-600(B) and 1-23-630(A) (1986
& Supp. 2003). Section 1-23-630(A) provides: “[e]ach administrative law judge of the
division has the same power at chambers or in open hearing as do circuit court judges and
to issue those remedial writs as a re necessary to give effect to its jurisdiction.”
2.It is well-established that courts have the authority to enforce their own orders
through the power of contempt. See e.g., State v. Kennerly, 331 S.C. 442, 503 S.E.2d 214
(Ct. App. 1998) aff'd 337 S.C. 617, 524 S.E.2d 837 (1999) ("The power to punish for
contempt is inherent in the nature and constitution of a court. It is a power not derived
from any statute, but arising from necessity; implied, because it is necessary to the
exercise of all other powers.”) (quoting In re Terry, 128 U.S. 289, 303 (1888)). See also,
State v. Bevilacqua, 316 S.C. 122, 128, 447 S.E.2d 213, 216 (Ct. App. 1994) (“Courts
have no more important function to perform in the administration of justice than to
ensure their orders are obeyed.”) “Nevertheless, contempt is an extreme measure and the
power to adjudge a person in contempt is not to be lightly asserted.” Id.
3.I find that Ms. Thompson is in Contempt of Court for willful disobedience of the
Consent Order.
4.However, in view of the payment agreement entered into by the parties at the
hearing, I find that it is not desirable to subject Ms. Thompson to imprisonment at this
time. Nonetheless, Ms. Thompson is cautioned that she should not expect this tribunal's
leniency in any future contempt proceedings. No excuses for nonpayment or failure to
abide by the new payment agreement will be accepted. This Order is subject to
enforcement by the Court upon request from the Department for good cause. If at that
time, credible evidence is submitted to this tribunal that Ms. Thompson has failed to
comply with the terms of the agreement, Ms. Thompson will be subject to jail.
AND IT IS SO ORDERED.
Marvin F. Kittrell
Chief Administrative Law Judge
November 16, 2004
Columbia, South Carolina |
