ORDERS:
ORDER
STATEMENT
OF THE CASE
The above-captioned matter is
before the Administrative Law Court (“ALC” or “Court”) pursuant to S.C. Code
Ann. § 40-1-160 (2001 and Supp. 2007) and 1-23-600(D) and (E) (as amended 2008)
for an administrative appeal.
In this matter, Appellant Robert Mitchell (“Mitchell”) seeks review of a
decision by Respondent South Carolina Department of Labor, Licensing and
Regulation, State Athletic Commission (the “Commission”), denying his application
for licensure as a promoter representative. Specifically, on March 12, 2008, the
Commission informed Mitchell that his application had been denied primarily
based upon his felony convictions.
After timely notice to the
parties, oral arguments in this matter were held on July 23, 2008 at the ALC in
Columbia, South Carolina. Based
upon the record, the parties’ briefs and oral arguments, and applicable law, I
affirm the Commission’s final decision.
BACKGROUND
On February 29, 2008, Mitchell
applied to the Commission for a promoter representative license (the
“license”). On the application, Mitchell properly disclosed that he was
convicted on February 25, 2005, in the United States District Court of Nevada,
of sports bribery, conspiracy to commit sports bribery, and attempt to commit
sports bribery.
Based upon this information, the Commission held a hearing on March 5, 2008 to
determine whether Mitchell’s application should be granted or denied. Mitchell
was not represented by counsel at the hearing. At the close of the hearing,
the Commission determined that Mitchell’s application should be denied and
issued an order on March 12, 2008. In its order, the Commission determined
that Mitchell’s prior felony convictions disqualified him from obtaining the
license because the convictions were “directly related to the occupation for
which th[e] license is sought.” (R. at 2). Mitchell filed a Notice of Appeal
with the Court on March 28, 2008 to challenge the decision.
STANDARD OF REVIEW
Pursuant to S.C. Code Ann. § 40-1-160
(2001 and Supp. 2007), this Court’s appellate review of the Commission’s final
decision is governed by the standards provided in S.C. Code Ann. § 1-23-380 (as
amended 2008). Section 1-23-380 provides that this Court “may not substitute
its judgment for the judgment of the [Respondent] as to the weight of the
evidence on questions of fact.” § 1-23-380(5). However, this Court, pursuant
to § 1-23-380(5),
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 [Respondent];
(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.
Id.
The findings of the agency are presumed correct and will be
set aside only if unsupported by substantial evidence. Hull v. Spartanburg
County Assessor, 372 S.C. 420, 424, 341 S.E.2d 909, 911 (Ct. App. 2007)
(citing Kearse v. State Health and Human Servs. Fin. Comm'n, 318
S.C. 198, 200, 456 S.E.2d 892, 893 (1995). Substantial
evidence is not a mere scintilla of evidence, but evidence which, considering
the record as a whole, would allow reasonable minds to reach the conclusion the
administrative agency reached. Jones v. Georgia-Pacific Corp., 355 S.C.
413, 417, 586 S.E.2d 111, 113 (2003); Anderson v. Baptist Medical Center,
343 S.C. 487, 492, 541 S.E.2d 526, 528 (2001); Lark v. Bi-Lo, Inc.,
276 S.C. 130, 135, 276 S.E.2d 304, 306 (1981). The possibility of drawing two
inconsistent conclusions from the evidence does not prevent an administrative
agency’s finding from being supported by substantial evidence. DuRant v.
S.C. Dep’t of Health and Envtl. Control, 361 S.C. 416, 420, 604 S.E.2d 704,
707 (Ct. App. 2004); Grant v. S.C. Coastal Council, 319 S.C. 348, 461
S.E.2d 388 (1995) (citing Palmetto Alliance, Inc. v. S.C. Pub. Serv. Comm.,
282 S.C. 430, 432, 319 S.E.2d 695, 696 (1984)).
An abuse of
discretion occurs when an administrative agency’s ruling is based upon an error
of law, such as application of the wrong legal principle; or, when based upon
factual conclusions, the ruling is without evidentiary support; or, when the
trial court is vested with discretion, but the ruling reveals no discretion was
exercised; or, when the ruling does not fall within the range of permissible
decisions applicable in a particular case, such that it may be deemed arbitrary
and capricious. State v. Allen, 370
S.C. 88, 94, 634 S.E.2d 653, 656 (2006) (application of standard to circuit
court) (citing Fontaine v. Peitz, 291 S.C. 536, 539, 354 S.E.2d 565, 566
(1987). A decision is arbitrary if no
rational basis for the conclusion exists, or when it is based on one’s will and
not upon any course of reasoning and exercise of judgment. A decision may also
be arbitrary if it is made at pleasure without adequate determining principles
or is governed by no fixed rules or standards. Converse
Power Corp v. S.C. Dep’t of Health and Envtl. Control, 350 S.C. 39, 47 564
S.E.2d 341, 345 (Ct. App. 2002) (quoting Deese v. S.C. State Bd. of
Dentistry, 286 S.C. 182, 184-85, 332 S.E.2d 539, 541 (Ct. App. 1985).
DISCUSSION
The
issue before the Court is whether substantial evidence in the record supports the
Commission’s decision in this matter. As set forth in its decision, the
Commission denied Mitchell’s application for the license based upon applicable
law concerning his prior felony convictions. In response, Mitchell argues that
the Commission’s hearing did not follow proper procedure and that his prior
convictions did not directly relate to the license he is seeking from the
Commission.
Hearing Procedure
Mitchell argues that
the hearing held by the Commission violated his due process rights, alleging
that it was grounded upon unlawful procedure. He also asserts that, among
other things, the Commission was “instructed by the legal department that they
had no discretion, nor authority in this matter, except to refuse [his] request
base[d] solely on a prior conviction.” (Appellant’s Br. at 1). There is no requirement that specific procedures must be
followed by the Commission during its hearings. Sloan v. S.C. Bd. of
Physical Therapy Exam’rs, 370 S.C. 452, 484, 636 S.E.2d 598, 615 (2006). In
fact, “[t]he requirements of procedural due
process, usually deemed to apply in a contested case or hearing which affects an individual’s
property or liberty interest, generally include adequate notice, the
opportunity to be heard at a meaningful time and in a meaningful way, the right
to introduce evidence, the right to confront and cross-examine witnesses whose
testimony is used to establish facts, and the right to meaningful judicial
review.” Id. at 484-5, 636 S.E.2d at 615; Moore v.
Moore, 376 S.C. 467, 473, 657 S.E.2d 743, 746 (2008) (“Procedural “[d]ue process requires (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.”) (citing Clear
Channel Outdoor v. City of Myrtle Beach, 372 S.C. 230, 235, 642 S.E.2d 565,
567 (2007)). Having reviewed the record, the Court finds that
Mitchell’s argument has no merit: Mitchell was provided with advance notice of
the hearing; he was advised of his right to be represented by counsel; he was
given the opportunity to present evidence and respond to all issues raised
during the hearing; he received the Commission’s written order outlining its
decision and reasoning; and, he was informed of the appeals procedure before
the Court should he choose to challenge the Commission’s decision.
And
as to Mitchell’s assertion concerning the Commission’s discretion in this
matter, there is nothing in the record to indicate that the Department’s
general counsel’s office gave any advice to the Commission during the hearing
other than its need to advise all parties, including Mitchell, of the appeals
process after the Commission had denied the license request by Mitchell.
Rather, the record is clear that the Commission deliberated the issues with
Mitchell and presented its concerns about his application. Accordingly, the
Commission’s decision will not be reversed based upon this assertion.
Prior felony conviction
Pursuant
to S.C. Code Ann. § 40-1-130 (2001), the Commission is granted the authority by
the General Assembly to deny a license to an individual “who has committed an
act that would be grounds for disciplinary action under [the chapter governing
the State Athletic Commission’s authority].” See also S.C. Code
Ann. § 40-81-130 (“A board may deny an authorization to practice to an
applicant who has committed an act that would be grounds for disciplinary
action under this article or the licensing act of the respective board.”).
This section refers to the grounds listed under S.C. Code Ann. § 40-1-110.
Mitchell’s prior felony convictions for sports bribery, conspiracy to commit
sports bribery, and attempt to commit sports bribery fall into at least two of
the grounds listed within § 40-1-110:
(f) [the individual] has committed
a dishonorable, unethical, or unprofessional act that is likely to deceive,
defraud, or harm the public;
. . .
(h) [the individual] has been
convicted of or has pled guilty to or nolo contendere to a felony or a crime
involving drugs or moral turpitude[.]
S.C. Code Ann. § 40-1-110 (f) and
(h). All three of Mitchell’s felony convictions center around sports bribery.
Clearly, sports bribery is an act “that is likely to deceive, defraud, or harm
the public”; further, Mitchell’s felony convictions are crimes involving “moral
turpitude.” § 40-1-110 (f) and (h). See State v. Horton, 271
S.C. 413, 414, 248 S.E.2d 263 (1970) (“An act in which fraud is an ingredient
involves moral turpitude.”). Therefore, Mitchell’s felony convictions squarely
fit within the grounds listed under § 40-1-110 by which the Commission is
authorized to refuse to grant an individual a promoter representative license.
The General Assembly
placed limitations upon the Commission’s authority to deny licensure to
individuals based upon § 40-1-110. Specifically, the Commission may not refuse
an individual “authorization to practice, pursue, or engage in a regulated
profession or occupation solely because of a prior criminal conviction unless
the criminal conviction directly relates to the profession or occupation for
which the authorization to practice is sought.” S.C. Code Ann. § 40-1-140
(emphasis added). Based upon the testimony and evidence presented during the
hearing, the Commission determined that Mitchell’s convictions were “directly
related to the profession or occupation” for which he seeks licensure.
Although Mitchell argues that his prior convictions were related to his
previous position as a “matchmaker,” there is substantial evidence in the
record to support the Commission’s decision that his convictions are directly
related to a promoter’s representative license.
In
sum, Mitchell argues that the Commission erred by determining that his prior
felony convictions for sports bribery, conspiracy to commit sports bribery, and
attempt to commit sports bribery are directly related to a promoter
representative, for which he has applied for licensure. However, there is
substantial evidence in the record to support the Commission’s decision:
Mitchell’s prior convictions relating to sports bribery, committed while he was
acting as a matchmaker for a boxing event, are clearly related to the license
he has requested. If Mitchell was granted the requested license, he would be
employed within the boxing profession. Accordingly, because the record –
specifically the Commission’s report and hearing transcript – represent significant
evidence to support the Commission’s decision, the Court finds that the
Commission did not abuse its discretion in denying the requested license.
ORDER
For the reasons set
forth above,
IT IS HEREBY
ORDERED that the Commission’s final agency determination denying Mitchell’s
application for licensure as a promoter representative is affirmed.
AND IT IS SO
ORDERED.
__________________________
Marvin
F. Kittrell
Chief
Judge
August 5, 2008
Columbia, South Carolina
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