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Administrative Law Court
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SC Administrative Law Court Decisions

CAPTION:
Brett Russell, P.T. vs. SCDLLR

AGENCY:
South Carolina Department of Labor, Licensing and Regulation

PARTIES:
Appellant:
Brett Russell, P.T.

Respondents:
South Carolina Department of Labor, Licensing and Regulation, State Board of Physical Therapy Examiners
 
DOCKET NUMBER:
08-ALJ-11-0016-AP

APPEARANCES:
Vernon F. Dunbar, Jr., Esquire, for the Appellant

Sheridon H. Spoon, Esquire, for the Respondent
 

ORDERS:

ORDER

STATEMENT OF THE CASE

This matter is an appeal by Brett Russell, a licensed physical therapist, from an Amended Final Order of the South Carolina State Board of Physical Therapy Examiners (Board) dated February 22, 2008. In its Amended Final Order, the Board sanctioned Russell for violating Principle 3 of the Code of Ethics for Physical Therapists as set forth in 26 S.C. Code Ann. Regs. 101-13 (Supp. 2007). Russell contends that two of the sanctions imposed by the Board – a public reprimand and a $1,000 fine – were outside the scope of the Board’s authority. Russell further contends that the Board erroneously found that Russell accepted $14,000 from a patient of his (Patient) while serving as Patient’s physical therapist. Upon review of this matter, the Board’s Amended Final Order is reversed, and this matter is remanded to the Board as set forth herein.

BACKGROUND

On March 8, 2007, the Board issued a Formal Accusation alleging that Russell served as a physical therapist to Patient from approximately 1998 to 2002 and that, during that time period, he solicited and received gifts and loans from Patient in excess of $17,000.00. According to the Formal Accusation, Russell’s conduct violated Regulation 101-13, as well as S.C. Code Ann. §§ 40-45-110 and 40-1-110(c),(f),(g),(k) and (l).[1]

On October 11, 2007, Russell and the Board entered into a Memorandum of Agreement and Stipulations (Memorandum). In the Memorandum, Russell stipulated that he had a physical-therapist/patient relationship with Patient from approximately January 7, 1998 to April 30, 2001. He further stipulated that he accepted approximately $14,000 from Patient during that time period. That latter stipulation, however, was inconsistent with Exhibit 3 of the Memorandum, which indicated that of the approximately $14,000 Russell accepted from Patient he received $5,577.20 from January 7, 1998 to April 30, 2001.[2]

On February 22, 2008, the Board issued an Amended Final Order in which it found that Russell admitted to having a physical-therapist/patient relationship with Patient from approximately January 7, 1998 to April 30, 2001. It further found that Russell admitted to accepting approximately $14,000 from Patient during that time period. Based on those findings, the Board concluded that Russell violated Principle 3 of the Code of Ethics for Physical Therapists as set forth in Regulation 101-13. Consequently, the Board imposed a fine of $1,000.00 on Russell, ordered that he be publicly reprimanded, and required him to attend a course on ethics.

Russell now appeals.

ISSUES PRESENTED

1. Did the Board err as a matter of law and abuse its discretion by publicly reprimanding Russell and fining him $1,000?

2. Did the Board improperly find that Russell accepted $14,000 in loans and other payments from Patient while serving as Patient’s physical therapist?

STANDARD OF REVIEW

This case is before the Administrative Law Court (ALC or Court) pursuant to S.C. Code Ann. § 1-23-600(D) (Supp. 2007) and S.C. Code Ann. § 40-1-160 (2001) upon an appeal from a final decision of a licensing board or commission. 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 S.C. Code Ann. §1-23-380(5) (as amended by 2008 S.C. Act No. 334) -- govern the circumstances in which an appellate body may reverse or modify an agency decision. That section sets forth:

The court may not substitute its judgment for the judgment of the agency as to the weight of the evidence on questions of fact. The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision [of the agency] 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(5) (as amended by 2008 S.C. Act No. 334).

DISCUSSION

The Board’s authority to publicly reprimand

Russell and to impose a fine of $1,000

Russell argues that the Board erred as a matter of law by publicly reprimanding Russell and by fining him $1,000. Specifically, Russell argues that the Board did not have the authority to impose those sanctions. The Court disagrees.

As noted above, the Board, in its Amended Final Order, found that Russell violated Regulation 101-13.[3] Regulation 101-13, which sets forth the Code of Ethics for Physical Therapists, provides in part that “Physical Therapists accept responsibility for the exercise of sound judgment.” 26 S.C. Code Ann. Regs. 101-13 (Principle 3) (Supp. 2007). S.C. Code Ann. § 40-45-120 (2001) sets forth sanctions that may be imposed for a violation of Regulation 101-13. It provides:

In addition to the sanctions the board may impose against a person pursuant to Section 40-45-110, the board may take disciplinary action against a person as provided in Section 40-1-120 and also may impose a civil penalty of not more than two thousand dollars for each violation of this chapter or of a regulation promulgated under this chapter,[4] the total penalty not to exceed ten thousand dollars.

S.C. Code Ann. § 40-45-120 (2001) (emphasis added). Section 40-1-120 therefore specifically authorizes the issuance of a public reprimand and/or a fine of at least $1,000 as a “disciplinary action” by the Board. See also S.C. Code Ann. § 40-1-120(A)(1) (2001) (also authorizing public reprimands as a disciplinary action).

In this case, Russell admitted at the hearing before the Board that he exercised “very poor judgment” in choosing to accept money from Patient. Moreover, in the Memorandum, Russell stipulated that his actions “present[ed] grounds that constitute misconduct, as alleged.”[5] Therefore, the Board was clearly authorized under §§ 40-45-120 and 40-1-120 to publicly reprimand Russell and to fine Russell $1,000.[6]

Board’s finding that Russell accepted approximately $14,000.00 from Patient

during the course of their physical-therapist/patient relationship

Russell further argues that the Board improperly found that Russell accepted approximately $14,000 from Patient while serving as Patient’s physical therapist. Specifically, Russell contends that he received only $5,577.20 from Patient during that time period. Respondent, however, argues that the Board’s finding was not erroneous since, in the body of the Memorandum, Russell stipulated to receiving $14,000 from Patient during the course of their physical-therapist/patient relationship.

“A stipulation is an agreement, admission or concession made in judicial proceedings by the parties thereto or their attorneys.” Kirkland v. Allcraft Steel Co., Inc., 329 S.C. 389, 392, 496 S.E.2d 624, 626 (1998). “A stipulation, although it is not itself evidence, is the equivalent of, and may be relied on as, proof.” 83 C.J.S. Stipulations § 5 (2000). “Stipulations, of course, are binding upon those who make them.” Kirkland, 329 S.C. at 392, 496 S.E.2d at 626. Thus, “[w]hen a party by a stipulation makes a concession or adopts a theory on which his or her cause of action is determined, he or she must abide by it on appeal.” 83 C.J.S. Stipulations § 5 (2000). Moreover, when a party enters into an agreed stipulation of fact as a basis for a tribunal’s decision, the tribunal will not go beyond the stipulation to determine the facts upon which the case is to be decided. Griffith v. Griffith, 332 S.C. 630, 644, 506 S.E.2d 526, 534 (Ct. App. 1998). Nevertheless, “where a conflict exists between a stipulation and an exhibit attached to the stipulation, then it must be resolved in accordance with the exhibit.” Estate of Revis by Revis v. Revis, 326 S.C. 470, 480, 484 S.E.2d 112, 118 (Ct. App. 1997).

Here, in the body of the Memorandum, Russell stipulated that, from approximately January 7, 1998 to April 30, 2001 (the period in which Russell served as Patient’s physical therapist), he accepted roughly $14,000 from Patient. Ordinarily, such a stipulation would be binding on Russell. However, in this case, Russell’s stipulation was inconsistent with Exhibit 3 of the Memorandum. Exhibit 3 – which, according to the Memorandum, sets forth documentation “evidencing the receipt of loans and other payments from [Patient]” – indicates that Russell received only $5,577.20 from Patient from January 7, 1998 to April 30, 2001. Pursuant to Revis, where a conflict exists between a stipulation and an exhibit attached to the stipulation, it must be resolved in favor of the exhibit. See Revis, 326 S.C. at 480, 484 S.E.2d at 118. Therefore, the Court concludes that the Board erred by finding that Russell accepted roughly $14,000 from Patient during the course of their physical-therapist/patient relationship.

Respondent, however, argues that, regardless of the amount of the payments received by Russell from Patient, the Board’s sanctions were nevertheless authorized under §§ 40-45-120 and 40-1-120 and therefore should be affirmed. The Court disagrees. The Board – not this Court – is the entity that is statutorily authorized to impose sanctions for violations of Regulation 101-13. See S.C. Code Ann. § 40-45-120 (2001). In this case, it is unclear whether the Board would have imposed the sanction that it did had it found that Russell received $5,577.20 – rather than $14,000 – from Patient while serving as Patient’s physical therapist. Therefore, the Court concludes that this matter should be remanded to the Board for it to make more explicit findings of fact regarding the misconduct of Petitioner specifically taking into account the fact that Russell received $5,577.20 from Patient during the course of their physical-therapist/patient relationship – not the $14,000 found by the Board. Cf. Huber v. S.C. State Bd. of Physical Therapy Exam’rs, 316 S.C. 24, 446 S.E.2d 433 (1994) (remanding case to Board to reconsider its sanction after determining that one of Board’s findings was improper). The Board should further determine the proper sanction to be imposed on Russell in light of its new findings of fact.

ORDER

Accordingly, based on the foregoing reasons, the Amended Final Order of the Board is REVERSED, and this matter is remanded to the Board for further proceedings consistent with this Order.

AND IT IS SO ORDERED.

_________________________________

Ralph King Anderson, III

Administrative Law Judge

September 22, 2008

Columbia, South Carolina



[1] Prior to the issuance of the Formal Accusation, Patient had commenced a collection action (Collection Action) in magistrate’s court against Russell. That litigation was settled pursuant to a Stipulation of Dismissal dated August 17, 2006.

[2] In a conference call held with the parties on August 29, 2008, the parties confirmed that the Accounting from the Collection Action, which is set forth on page 28 of the Record on Appeal, constituted Exhibit 3 of the Memorandum. According to the Accounting, the sum of the loans and other payments received by Russell from Patient was $14,172.20. However, the Accounting includes five payments, totaling $8,595, which were received by Russell after April 30, 2001.

[3] While the Formal Accusation alleged that Russell violated not only Regulation 101-13, but also Sections 40-45-110 and 40-1-110, in the Amended Final Order, the Board found only that Russell violated Regulation 101-13.

[4] Regulation 101-13 was promulgated pursuant to the statutory authority of S.C. Code Ann. § 40-45-60(A).

[5] As noted above, in the Formal Accusation, the Board alleged that Russell violated, inter alia, Regulation 101-13.

[6] Because, as explained below, the Court has ultimately concluded that this matter should be remanded to the Board for it to issue more explicit findings of facts to support its sanction, the Court declines to address whether the Board abused its discretion by publicly reprimanding Russell and fining him $1,000. However, the Court notes that our Court of Appeals has held that sanctions that are within those established by law are not “arbitrary and capricious.” See Deese v. S.C. State Bd. of Dentistry, 286 S.C. 182, 185, 332 S.E.2d 539, 541 (Ct. App. 1985). Moreover, the Court of Appeals has further held that “[a]n agency need not exercise its discretion identically in every case” and that “[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.” Id. (quoting Villela v. Dep’t of the Air Force, 727 F.2d 1574, 1577 (Fed.Cir.1984)).


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