SC Administrative Law Court Decisions

STATEMENT OF THE CASE

This matter comes before the South Carolina Administrative Law Court (ALC) on the January 10, 2005 request for a contested case hearing by Respondent Kellerceal R. Wragg. Ms. Wragg challenged the imposition of a $5000 civil monetary penalty by Petitioner South Carolina Department of Health and Environmental Control (DHEC or Department). The penalty was imposed upon Respondent for operating an unlicensed community residential care facility (CRCF) at 212 Line Street in Charleston, South Carolina, in violation of 25A S.C. Code Ann. Regs. 61-84 § 103(A) (Supp. 2004) and S.C. Code Ann § 44-7-260(A)(6) (2002).

After two continuances, one at the request of Respondent and one at the request of the Department, a hearing of this case was held on September 20, 2005, at 10:00 a.m., at the Administrative Law Court in Columbia, South Carolina. The Department was present at the hearing; Respondent, however, failed to appear at the hearing, despite having been noticed of the hearing by an Order of Continuance and Notice of Rescheduled Hearing dated August 9, 2005. Accordingly, the contested case proceeded in Respondent’s absence. In its case, the Department presented the enforcement file related to Respondent’s operation and offered the testimony of three witnesses: DHEC inspectors Daryl Orage and Kristin Carstarphen and Division of Health Licensing Director Dennis Gibbs. Based upon the evidence presented by the Department, I find that its decision to impose a $5000 penalty upon Respondent for the operation of an unlicensed community residential care facility must be sustained.

FINDINGS OF FACT

Having carefully considered all testimony, exhibits, and arguments presented at the hearing of this case, and taking into account the credibility and accuracy of the evidence, I make the following Findings of Fact by a preponderance of the evidence:

1. Kellerceal Wragg holds a license to operate Randolph’s Residential Care Facility in Charleston, South Carolina. She and her family have been in the residential care business since the 1960s.

2. On September 30, 2004, the Department received a complaint that Ms. Wragg had sent several residents from Randolph’s Residential Care Facility to live in an unlicensed facility at 212 Line Street in Charleston. The residents had been moved because one of two buildings licensed as Randolph’s Residential Care Facility was forced to close.

3. The Department sent two inspectors, Daryl Orage and Kristin Carstarphen, unannounced, to investigate the complaint on October 19, 2004.

4. At the house at 212 Line Street, the inspectors were invited in by Ms. Wragg’s daughter, Cherlania Brown, and proceeded to interview Ms. Brown, three residents, a visiting family member, and Elizabeth Weston, a staff member at the residence.

5. The Department’s report of its investigation stated that Ms. Brown indicated to DHEC inspectors that “her mother was in charge of operations.” She also stated that three relatives were being cared for in the facility and that they were cousins of her grandmother.

6. During testimony at the hearing, Dennis Gibbs, Director of the Department’s Division of Health Licensing, explained that Section 101(L) of Regulation 61-84 defines a community residential care facility as “[a] facility which offers room and board and which, unlike a boarding house, provides/coordinates a degree of personal care for a period of time in excess of 24 hours for two or more persons, 18 years old or older, not related to the licensee within the third degree of consanguinity.”

7. During the inspection, Department inspectors found that the staff at the Line Street residence was administering medications to the residents, serving meals to the residents, and providing other personal care and assistance to the residents.

8. During the inspectors’ visit to the Line Street residence on October 19, 2004, Respondent’s husband arrived at the residence, spoke to the inspectors, and informed them that his wife was out of town.

9. Mr. Wragg also disclosed to inspectors from the Long Term Care Ombudsman Program during their visits to Randolph’s Residential Care Facility on October 21, 2004, and November 10, 2004, that several residents were moved to the 212 Line Street residence for approximately one month to six weeks while the second Randolph’s Residential Care Facility was going through foreclosure.

10. In a letter to the Department dated November 3, 2004, Ms. Wragg stated that the house at 212 Line Street was owned by a close family friend who entrusted the home to her to use as a family dwelling as needed. Ms. Wragg further stated that she was allowing her daughter and several family members who needed a place to stay to live at the Line Street residence; these family members assisted financially with the upkeep of the house and were cared for by her daughter and another relative who was living at the house.

11. On November 22, 2004, the Department sent a letter to Ms. Wragg informing her that the Department would consider ceasing its enforcement action if she provided documentation that two of the three residents at 212 Line Street were related within the third degree of consanguinity or documentation from a physician that two of the three residents could live independently and did not require residence in a licensed CRCF.

12. In a December 10, 2004 follow-up letter to the Department, Ms. Wragg acknowledged that her daughter and her children as well as three relatives resided at the Line Street address. She stated that the relatives “are not within the third degree [of consanguinity]” and that they were unable to live independently.

13. Subsequently, in a December 13, 2004 letter to Ms. Wragg, Dennis Gibbs informed her that the Department was imposing a $5000 monetary penalty for operating an unlicensed facility.

CONCLUSIONS OF LAW

Based upon the foregoing Findings of Fact, I concluded the following as a matter of law:

1. The Department is the state agency charged with the licensing and inspection of community residential care facilities as defined by S.C. Code Ann. § 44-7-260(A)(6) (2002) and S.C. Code Ann. § 44-7-260(C) (2002). The Administrative Law Court has subject matter jurisdiction over contested cases arising from enforcement disputes between the Department and community residential care facilities. See S.C. Code Ann §§ 1-23-310 et seq. (2005 and Supp. 2004); S.C. Code Ann. § 44-7-320(B) (2002).

2. The standard of proof in an administrative hearing, absent an allegation of fraud or a statute imposing a higher burden, is a preponderance of the evidence. Anonymous v. State Bd. Of Med. Exam’rs. 329 S.C. 371, 375, 496 S.E.2d 17, 19 (1998).

3. Community residential care facilities are licensed by the Department pursuant to S.C. Code Ann. § 44-7-260(A)(6) (2002). Regulation 61-84 § 101(L) defines a community residential care facility as:

A facility which offers room and board and which, unlike a boarding house, provides/coordinates a degree of personal care for a period of time in excess of 24 consecutive hours for two or more persons, 18 years old or older, not related to the licensee within the third degree of consanguinity. It is designed to accommodate residents’ changing needs and preferences, maximize residents’ dignity, autonomy, privacy independence, and safety, and encourage family and community involvement. Included in this definition is any facility (other than a hospital), which offers or represents to the public that it offers a beneficial or protected environment specifically for individuals who have mental illness or disabilities. These facilities may be referred to as ‘assisted living’ provided they meet the above definition of community residential care facility.

25A S.C. Code Ann. Regs. 61-84 § 101(L) (Supp. 2004).

4. As provided by Regulation 61-84 § 101(TT), the degree of kinship that would preclude the necessity for licensing by the Department is that “‘within the third degree of consanguinity,’ e.g., a spouse, son, daughter, sister, brother, parent, aunt, uncle, niece, nephew, grandparent, great-grandparent, grandchild, or great-grandchild.” 25A S.C. Code Ann. Regs. 61-84 § 103(A) (Supp. 2004).

5. The evidence supports the conclusion that Kellerceal Wragg was operating an unlicensed community residential care facility at 212 Line Street in Charleston, South Carolina, in October 2004. Such unlicensed operation of a community residential care facility is a violation of both S.C. Code Ann. § 44-7-260 (2002) and 25A S.C. Code Ann. Regs. 61-84 §103(A) (Supp. 2004).

6. S.C. Code Ann. § 44-7-320(A)(1)(a) (2002) provides that “[t]he [D]epartment may deny, suspend, or revoke licenses or assess a monetary penalty against a person or facility for . . . (a) violating a provision of this article or departmental regulations.”

7. S.C. Code Ann. § 44-7-320(C) (2002) provides that “[t]he penalty imposed by the [D]epartment for [a] violation of this article or its regulations must be not less than one hundred nor more than five thousand dollars for each violation of any of the provisions of this article. Each day’s violation is considered a subsequent offense.”

8. The fact-finder in a case has the authority to impose a penalty consistent with the facts presented. Walker v. S.C. ABC Comm’n., 305 S.C. 209, 210, 407 S.E.2d 633, 634 (1991). Therefore, considering the reliability of its witnesses and the evidence introduced by the Department and the failure of the Respondent to appear or to produce any evidence at the hearing, I find that the decision of the Department to impose a $5000 penalty upon Respondent for the operation of an unlicensed community residential care facility must be sustained.

ORDER

Based upon the Findings of Fact and Conclusions of Law stated above,

IT IS HEREBY ORDERED that the Department’s decision to impose a $5000 civil monetary penalty upon Respondent for operating an unlicensed residential care facility in violation of S.C. Code Ann. § 44-7-260 (2002) and 25A S.C. Code Ann. Regs. 61-84 § 103(A) (Supp. 2004) is SUSTAINED.

AND IT IS SO ORDERED.

______________________________

JOHN D. GEATHERS

Administrative Law Judge

September 27, 2005

Columbia, South Carolina