South Carolina              
Administrative Law Court
Edgar A. Brown building 1205 Pendleton St., Suite 224 Columbia, SC 29201 Voice: (803) 734-0550

SC Administrative Law Court Decisions

CAPTION:
Jimmy L. Gardner vs. LLR/DPOL, Board of Dentistry

AGENCY:
South Carolina Department of Labor, Licensing & Regulation

PARTIES:
Appellant:
Jimmy L. Gardner

Respondent:
South Carolina Department of Labor, Licensing & Regulation, Division of Professional and Occupational Licensing, Board of Dentistry
 
DOCKET NUMBER:
01-ALJ-11-0517-A-AP

APPEARANCES:
n/a
 

ORDERS:

ORDER

Pursuant to S.C. Code Ann. § 40-15-140, Jimmy L. Gardner, D.D.S. (“Appellant”), filed an application dated April 18, 2001 with the South Carolina Department of Labor, Licensing, and Regulation (“Department”), State Board of Dentistry (“Board”), to be re-licensed as a dentist in South Carolina. Dr. Gardner paid the application fee, as required by the rules and regulations of the Board, and satisfactorily passed the examination on subjects and operations pertaining to dentistry, as prepared by the Board. Footnote On September 7, 2001, the Administrator of the Board wrote Appellant, requesting him to appear before the Board at 12:00 noon, Sunday, September 23, 2001 in Columbia, South Carolina “to answer any questions the Board may have regarding your application for a South Carolina Dental License.” Appellant appeared and on October 23, 2001, the Board issued an order wherein it unanimously voted to deny Appellant’s application. The Board noted that its action, taken pursuant to Section 40-1-130 of the 1976 Code of Laws of South Carolina, as amended, was “based upon Applicant’s having committed acts that are grounds for disciplinary action in this State, as evidenced by the its final orders of April 28, 1998 (license revoked), Footnote and April 28, 1995 (license suspended, with conditions). Footnote The Board found that both were based upon serious violations of Section 40-15-190. Further, the Board found that “the denial of Applicant’s application is based upon Applicant having committed acts indicating that Applicant does not possess the character and fitness to practice dentistry, as evidenced by, among other things, the prior acts of professional misconduct reflected in the Final Orders of the Board mentioned above.”

In its order, the Board denied Appellant’s application for a license to practice dentistry in this State and ordered that “Applicant shall not be eligible to reapply for licensure in this State at any time in the future.” (Emphasis added). No provision was made for any rehabilitation by Appellant, for any reexamination in the future, or for any future hope of obtaining a dentistry license in South Carolina.

On November 19, 2001, Appellant filed a Notice of Appeal of the Board’s order with the Administrative Law Court (“ALC” or “Court”). Footnote The case was assigned to the Honorable Carolyn Matthews, Administrative Law Judge. Thereafter, Judge Matthews issued an order on March 19, 2002 which vacated the Board’s order of October 23, 1001 and remanded the case to the Board for a full evidentiary hearing. Pursuant to her order, the Board was to consider the entire record and issue a final decision. The Board filed a Motion for Reconsideration with Judge Matthews on October 31, 2002, which was denied on December 31, 2002.

Subsequently, the Board appealed Judge Matthews’ order to circuit court. The matter was heard on March 12, 2004 by the Honorable Reginald I. Lloyd, Presiding Judge of the Fifth Judicial Circuit. He stated in his order dated March 30, 2004 that he had issued an earlier order on February 23, 2004 wherein he had ordered the matter referred (remanded) back to the Board for a hearing. At the hearing on March 12, 2004, counsel for the Board advised Judge Lloyd that seven (7) of the nine (9) members of the Board who were serving on the Board when it issued its Order on October 23, 2001 remained on the Board. Counsel for the Board told Judge Lloyd that these members were “tainted.” Board Counsel noted that the Board had four (4) new members but such did not constitute a quorum (as required by statute). Ultimately, Judge Lloyd concluded that the Board could not provide a “fair due process hearing” and remanded the case to the Administrative Law Court for assignment to an Administrative Law Judge to conduct a full evidentiary hearing on the merits. He ordered the matter to be set for a hearing within 30 days and an order to be issued within 15 days of the hearing.

This Court was unable to comply with the order of Judge Lloyd to hold a contested case hearing due to its lack of subject matter jurisdiction. On April 15, 2004, the undersigned issued an order remanding the matter to the Dental Board to conduct a full evidentiary hearing “not sooner than sixty (60) days after the date of this Order nor more than one hundred and twenty (120) days after the date of this Order.” Also, the undersigned authorized the parties to engage in expanded discovery, prohibited legal advisors or staff members of the Board or the Department which were previously involved in matters pertaining to Appellant to be involved in this or any future investigatory or adjudicatory process concerning Appellant, and authorized Appellant to conduct voir dire of the members of the Board to insure that they were neutral and objective and that Appellant would have a just and fair hearing.

The order of the undersigned dated April 15, 2004 was appealed to circuit court. Judge Lloyd held a hearing on June 4, 2004 and issued a handwritten decision on August 19, 2004, denying the appeal and remanding the matter to the undersigned “for reconsideration of Judge Kittrell’s Order setting hearing timelines, remand to Board of Dentistry, or such other matters as Judge Kittrell deems proper.” Thereafter, Appellant filed a motion requesting the Court to order the Board to reinstate his license to practice dentistry in South Carolina, arguing that he could not receive a fair hearing before the Board. In the motion, Appellant noted that he had retaken the dental boards and passed them. He stated that he was no danger to the public. The Board filed a response in opposition to the motion.

It is appropriate that this case be remanded to the Board to conduct a full evidentiary hearing

as required by law. It is incumbent that the Board provide to Appellant his constitutional right to a fair trial on his request for a license to practice dentistry in this state. This is a basic requirement of due process Footnote and applies to administrative agencies which adjudicate as well as to courts. Ross v. Medical University of South Carolina, 328 S.C. 51, 492 S.E.2d 62 (1997); Withrow v. Larkin, 421 U.S. 35 (1975). The Court, in remanding this case, presumes that each member of the Board who will adjudicate this matter on remand is honest, fair and unbiased. Such is required. Garris v. Governing Board of the South Carolina Reinsurance Facility, 333 S.C. 432, 511 S.E.2d 48 (1999). “A hearing tribunal will not be disqualified unless actual bias, as opposed to a mere potential for bias, is shown.” Kizer v. Dorchester County Vocational Education Board of Trustees, 287 S.C. 545, 552 (1986). The Court notes that Appellant stated in his reply brief to Respondent’s brief in opposition to the motion for reinstatement that the Board will have five new members after January 1, 2005 (four who became Board members on July 1, 2004 and one who will become a Board member on January 1, 2005). Since none of these board members have sat at any hearing concerning any complaint before the Board regarding Appellant, the Court finds that they should be qualified to conduct a fair and impartial hearing and should have no bias. Further, the Court is aware that Appellant has conducted voir dire of several of these new board members. Although Appellant is concerned about possible bias concerning two of these new Board members, the Court has read their examinations and finds they can sit as impartial adjudicators. Footnote

The Board, consisting only of the five new members who have taken office since July 1, 2004, must allow the parties to present their cases and introduce evidence and must then consider the entire record in making its decision. If a member of this newly constituted Board has previously acted in any investigative process involving Appellant or has any bias, he must recuse himself from serving on the Board in the adjudication of this case on remand. See S.C. Constitution Article I, § 22. If a member of the Board is “biased,” that is, one who has knowledge of “ex parte” information as a result of a prior investigation, or such member has developed (by prior involvement in this case) a “will to win” or has a fixed and unchangeable preformed opinion, then he must also distance himself from the adjudicatory process, recuse himself from the Board, and refrain from discussing this matter with the members who will hear the case. Footnote See generally Garris v. Governing Bd. of S.C. Reinsurance Facility, 333 S.C. 432, 511 S.E.2d 48 (1998) (establishing a prohibition against board members serving as both prosecutors and adjudicators).

Further, because of the unique circumstances of this case, any legal advisor or staff member who has previously advised members of the Board in any matter related to Appellant, whether in an investigatory or adjudicatory process, or in any other level of review, must not participate in this matter on review or any future matter concerning Appellant since that person may have acquired a “proprietary” attitude, and/or have acquired a “will to win,” which can bias the members hearing the case.

The members of the Board are reminded that the provisions of the Administrative Procedures Act control this hearing process. S.C. Code Ann. § 1-23-320 provides that an individual must be provided an opportunity for a hearing, notice of the hearing, and a short and plain statement of the matters asserted by the agency. Further, this statutory provision provides for discovery. Under this section the Administrative Law Court has authority to assist the parties with the enforcement of such. Also, our Supreme Court has held that “under the Administrative Procedures Act, any party to a contested proceeding may depose witnesses in accordance with the provisions which apply in civil actions.” Ross v. Medical University of South Carolina, 328 S.C. 51, 492 S.E.2d 62 (1997). The Board must allow discovery in this case so the facts can be fully developed and a complete record can be made at the hearing. Also, the members of the Board are reminded that S.C. Code Ann. §1-23-360 places limitations on “ex parte” communication.

The Court makes these comments and suggestions to these new members of the Board since this case has already had a lengthy and tortured history. Further, the Court is aware of the order of the circuit court judge who, based upon representations by counsel for the Board, made the decision that the Board as then constituted could not provide an unbiased hearing nor issue an unbiased decision. However, “due process is flexible and calls for such procedural protection as the particular situation demands.” Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972).

Our General Assembly created these professional boards and provided by statute for the appointments of those who compose their membership. The individuals selected to serve as members are distinguished citizens of this state who are entrusted by the General Assembly to fulfill their statutory duties with regard to the qualifications and discipline of licensees. Without competent evidence to the contrary, this court cannot make a determination that the five new members of the Board are not trustworthy, honest and without bias, or that they are incapable of listening carefully to the evidence presented at a hearing and of thereafter making a fair and honest decision based solely upon the merits of the case.

In seeking to prove that a dentistry license should be issued in this case, Appellant is asserting the affirmative and thus he bears the burden of proof. Sanders and Nichols, South Carolina Trial Handbook, § 9.3 (2001). Only when Appellant has met the burden of demonstrating that he has satisfied the required conditions can the license be granted. 73A C. J. S. Public Administrative Law and Procedure, § 128 (1983).

The Court is hopeful that a full and complete record will be made by the Board and that it will issue a written decision which contains detailed findings of fact and detailed conclusions of law, separately stated, all as required by law and statute. S.C. Code Ann. §1-23-350; Kiawah Property Owners Group vs. Public Serv. Comm’n of South Carolina and Kiawah Island Utility, Inc., 338 S.C. 92, 525 S.E.2d 863, 865 (1999) (citing Porter v. S. C. Public Serv. Comm’n., 333 S.C. 12, 21, 507 S.E.2d 328, 332 (1998). The findings of fact made by the Board must be sufficiently detailed to enable a reviewing court to determine whether the findings of the Board are supported by the evidence in the record and whether the law has been properly applied. Parsons v. Georgetown Steel, 318 S.C. 63, 456 S.E.2d 366 (1995); Able Communications, Inc. v. S. C. Public Serv. Comm’n, 290 S.C. 409, 351 S.E.2d 151 (1986).

Accordingly, it is hereby

ORDERED that this Court does not have subject matter jurisdiction to hear this case as a contested case or conduct a full evidentiary hearing; and it is further

ORDERED that this case is remanded to the Board, which must schedule and conduct a full and complete evidentiary hearing, not sooner than sixty (90) days after the date of this Order nor more than one hundred and twenty (120) days after the date of this Order; and it is further

ORDERED that the Board must issue a written order within thirty (30) days after the date of the evidentiary hearing in this matter; and it is further

ORDERED that no legal advisor or staff member of the Board or of the Department, previously involved in any matter related to Appellant, shall be involved in this or any future investigatory or adjudicatory process concerning Appellant to ensure such individual can not fuel any “proprietary” attitude with or to the Board; and it is further

ORDERED that the parties hereto may engage in written and deposition discovery to ensure that the case is fully developed for trial before the Board and so a full and complete record can be made.

AND IT IS SO ORDERED.


________________________________

Marvin F. Kittrell

Chief Administrative Law Judge



December 8, 2004

Columbia, South Carolina


Brown Bldg.

 

 

 

 

 

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