INTRODUCTION AND PROCEDURE OF THE CASE

This matter came before this Court on the appeal of Greg Pickett from a February 7, 2005 Order of the State Board of Architectural Examiners in which the Board found that Appellant had violated the laws governing the practice of Architecture in South Carolina. The Board revoked his license, and ordered him to pay $2,400.00 in “administrative costs” pursuant to S.C. Code Ann. § 40-3-170 (2001). Appellant received actual notice of the Board’s Order no later than March 3, 2005, the date of his Notice of Appeal.

Although by operation of Rule 34 of the Rules of Procedure (“The filing of an appeal from the final decision of an agency shall stay th[at] . . . decision . . . unless the effect of filing an appeal is otherwise established by statute”), S.C Code Ann. § 1-23-380(A)(2) (Supp. 2004) (“The filing of the petition [for judicial review] does not itself stay enforcement of the agency decision”) and S.C. Code Ann. §§ 40-1-160 & 40-3-160 (“Service of a petition requesting a review does not stay the board’s decision”), Appellant has never moved for a stay of the Board’s decision. Accordingly, his license has been suspended since the Board’s order was issued on February 7, 2005.

The case came before the Board for a Final Order Hearing on January 26, 2005 as a result of the Recommendation of Hearing Officer Peter A. McKellar, III dated October 8, 2004. The night before the Final Order Hearing, at “about 5:50 p.m.,” Appellant’s attorney received a fax from Appellant indicating “there was a problem with his fiancée being ill.” (R. 324-326 & 358-362.) The fax from Appellant, which purported to be a doctor’s note from indicated that Appellant’s fiancée had been admitted to the hospital in Pineville, North Carolina as early as January 10 or January 18, 2005; and, in any event, would be in the hospital until “January 27, 2005.” (Id.) Neither the note nor Appellant offered any reason as to why Appellant could not travel approximately 85 miles (i.e., about 20 miles less than his attorney had to travel) from Pineville to Columbia, meet with his counsel, attend the hearing and return. (Id.)

At approximately 9:49 p.m. on January 25, 2005, counsel for Appellant faxed a letter to the Administrator requesting a continuance. (R. 324-326.) In that letter, and again at the hearing, Appellant’s counsel acknowledged that such a continuance was within the discretion of the Board. (R. 324-326 & 358-362.) The Final Order Hearing had been continued once after Appellant first contacted legal counsel on November 10, 2004, or less than a week before the original hearing date of November 16, 2004. (R. 326-327.)

After a review of the record and after hearing arguments from counsel for both the State and Appellant, and on the motion of José Caban, Chair of the School of Architecture at Clemson University, the Board unanimously voted to accept Mr. McKellar’s Recommendation regarding a finding of misconduct in connection with three projects: Hickory Dickory Dock, Paxar and Red Oath Christian Fellowship. The Board ordered revocation of Appellant’s license and imposition of costs in the amount of $2,400.00 in connection with Appellant’s violation of S.C. Code Ann. § 40-1-110(f), (k) and (l) and S.C. Code Regs 11-12(C) (4), 11-12(D)(1) and 11-11(B). (R. 355-382 & 388.) The Board issued its written Final Order on October 8, 2005. (R. 384-391.) This appeal followed. Following proper notice, an appellate hearing was held on August 2, 2005 with counsel present as noticed above.

DISCUSSION

After reviewing Appellant’s Brief, it appears that Appellant’s appeal centers on three issues: (1) whether substantial evidence exists in the record as a whole to support the Board’s Order, (2) whether the Board erred in refusing to grant Appellant’s request for a second continuance of the Final Order Hearing, and

(3) whether the sanction imposed was appropriate.

Standard of Review

This case arises out of a contested case hearing before an administrative agency. See S.C. Code Ann. § 1-23-310(2) (Supp. 2004) (the term “agency” includes “each state board . . . department authorized by law to determine contested cases) and S.C. Code Ann §§ 40-1-70 and 40-3-70 (2001) (powers of Board of Architectural Examiners to conduct disciplinary hearings). Accordingly, the applicable standard of review is prescribed by the Administrative Procedures Act (APA). See S.C. Code Ann. § 1-23-380(B) (standard of review of decision of professional licensing boards).

Under the APA, the Administrative Law Court may overturn the Board’s determination if the decision is clearly erroneous in view of the substantial evidence on the record; the Court’s review is limited to that record. See S.C. Code § 1-23-380(A)(6)(B) & (D) (Supp. 2004). See also Grant v. S.C. Coastal Council, 319 S.C. 348, 353, 461 S.E.2d 388, 391 (1995) and Hanks v. Blair Mills, Inc., 286 S.C. 378, 383, 335 S.E.2d 91, 94 (Ct. App. 1985). Substantial evidence is something less than the weight of the evidence. DeGroot v. Employment Sec. Comm’n, 285 S.C. 209, 211, 328 S.E.2d 668, 669 (Ct. App. 1985). It is evidence that a reasonable mind might accept as adequate to support a given conclusion. Boggs v. State Bd. of Medical Examiners, 288 S.C. 144, 341 S.E.2d 635 (1986). The possibility of drawing two inconsistent conclusions from the evidence does not prevent the Board’s findings from being supported by substantial evidence. See Grant, 319 S.C. at 353, 461 S.E.2d at 353. So long as there is evidence in the record that would allow reasonable minds to reach the same conclusion reached by the Board, that decision cannot be overturned on appeal. DeGroot, 285 S.C. at 211, 328 S.E.2d at 669. The Court “shall not substitute its judgment for that of the [Board] as to the weight of the evidence.” S.C. Code Ann. § 1-23-380(A)(6); Grant, 319 S.C. at 353, 461 S.E.2d at 353; see also Gibson v. Florence Country Club, 282 S.C. 384, 386, 318 S.E.2d 365, 367 (1984).

Substantial Evidence Exists in the Record as a Whole to Support the Recommendation the Hearing Officer and the Licensing Board that Appellant Engaged in Professional Misconduct.

At the hearing before Mr. McKellar, Appellant’s direct testimony consisted of an unsuccessful attempt to admit a hearsay document, and testimony that he thought from the concluding paragraph of the formal complaint advising him that he could “respond and present evidence and argument on all issues” and had the right “to “appear alone or with counsel” that he could not present witnesses, but could “only appear with a lawyer, no one else.” (R. 136-143.)

When asked how he could exercise direct supervisory control over a designer in Rock Hill when he was in Charlotte, Appellant answered that he communicated by email and fax. (R. R. 143-146.) However, when asked to produce copies of those emails and faxes with respect to Red Path, Appellant presented two fax cover sheets, one of which was addressed to the investigator in this matter and the other to Chris McSwain regarding two uplifts to a Miller Building at Baxter Crossing. (R. 173-176.) Similarly, when asked where his work files were, he maintained that they were at AE and that he could not get to them but offered no reason as to why AE employees could not be directed to give him his purported files. (R. 148.) (R. 150, ln. 10-14 & 151-152). When asked “Do you have any evidence other than your stamp that you had anything to do with these projects [Hickory Dickory Dock and Paxar], other than getting paid?” he responded, “No sir.” (R. 152.)

During the hearing, Appellant was asked to explain his response to an investigator’s request for information regarding whether Appellant ever met with members of Red Path Fellowship and the whereabouts of the work files for this project. He responded: “To my knowledge and understanding, Mr. Ed Bowers was the project consultant for the [Red Path] church and contractor and the only contact available to me, as allowed by Rule 3.102 the AIA Code of Ethics and Professional Conduct.” (R. 153 & 269.) That Rule, however, states as follows:

3.102 Members shall undertake to perform professional services only when they, together with those whom they may engage as consultants, are qualified by education, training, or experience in the specific technical areas involved.

The Commentary to this section explains that:

This rule is meant to ensure that Members not undertake projects that are beyond their professional capacity. Members venturing into areas that require expertise they do not possess may obtain that expertise by additional education, training, or through the retention of consultants with the necessary expertise.

Id.

According to Appellant, “That meant Harlan Carroll [and] Ed Bowers,” whom, he went on to testify, were not members of the AIA but were engineers. (R. 156-157; see also R. 139, 149 & 163.) Appellant did not explain how Rule 3.102 prevented him from having direct contact with Red Path in connection with a project over which he purportedly had supervisory responsibility. (R. 156-157.) When asked by the Hearing Officer if he was an employee of AE and if they “took out social security and everything on you?” Appellant replied “Yes, sir” (R. 157-158); however, this contention is not consistent with the checks written on the account of A.E., Inc. to Appellant on Wednesday, March 20, 2002 for $500.00 for “Job #503” [Hickory Dickory Dock] and on, Friday, September 4, 2002 for $560.00 for “Job #524” [Paxar.] (R. 66-67 & 204-205.) The memos on the checks referred not to salary, but to specific “jobs.” (Id.) In addition, if Appellant was an employee of AE, it begs the question of why Appellant would testify that “Ed Bowers was only, Ed Bowers was a consultant” on the Red Path project. (R. 152 & 272-276.) During the hearing before Mr. McKellar, Appellant cross-examined no witnesses and objected to no exhibits.

At the hearing before this Court, Appellant asserted that the APA allows hearsay in proceedings before the Board. S.C. Code Ann. § 1-23-330(1) provides that “Except in proceedings before the Industrial Commission the rules of evidence as applied in civil cases in the court of common pleas shall be followed.” The proffered letter does not fall within the exceptions to the hearsay rule under Rules 803 and 804, SCRE. § 1-23-330(1) does provide that when a hearing will be expedited and the interests of the parties will not be prejudiced substantially, any evidence may be received in written form. However, allowing a one-page, unauthenticated, uncorroborated document into evidence with no opportunity for cross-examination regarding either the authenticity of the document or the matters asserted therein would not have expedited the proceedings and would have denied the State Board the opportunity to challenge the document’s authenticity and the matters addressed therein.

S.C. Code Regs. 11-11(A) mandates that “[t]he personal seal and signature of the architect in responsible charge and the architectural firm’s seal shall appear on all architectural documents to be filed for public record.” See also S.C. Code Ann. § 40-3-280 (2001).

Although Appellant testified that he stamped the Red Path plans on July 10, 2003 as “finalized” (R. 145), the client never received these plans and substantial changes were still being made to them a month later.

The Board Did Not Abuse Its Discretion by Denying Appellant’s Second Request for a Continuance of the Final Order Hearing.

Final Order Hearing in this matter was scheduled on January 26, 2005. Appellant had not contacted legal counsel until November 10, 2004 to represent him at the hearing originally scheduled for November 16, 2004.

Appellant was represented by and appeared by his counsel, who was afforded a full and fair opportunity to present arguments against accepting the Hearing Officer’s Recommendation. He repeatedly deferred to the Board and did not contend that denying his client’s request for a continuance way constituted an abuse of discretion. (R. 355-382.) To the contrary, he acknowledged that “the Board . . . probably . . . would not grant a continuance since a continuance had previously been granted.” (R. 358-359.) “The decision to grant or deny a continuance is a matter within the lower court’s discretion. Graybar Elec. Co. v. Rice, 287 SC 518, 520, 339 S.E. 2d 883, 884 (Ct. App. 1986). Absent an abuse of discretion, the court’s decision to deny a continuance will not be disturbed. Hamm v. SC Pub. Service Commission, 312 SC 238, 241, 439 S.E. 2d 852, 853 (1994).” A & I, Inc. v. Gore, Opin. No. 4032, Shearouse Adv. Sheets, Oct. 17, 2005.

The misconduct in the cases cited by Appellant is distinguishable from Appellant’s indifference to laws and regulations intended to protect the public from unlicensed persons and to ensure that buildings are properly designed to protect the health, safety and welfare of its occupants. Appellant stamped the plans for that church, ostensibly as the architect in responsible charge, even though he was as yet unknown to the owner, and that, at the time of the hearing, the church was “still not completed.” (Tr. 67-85; Compl. Exh. 11.)

Specifically addressing Appellant’s characterization of the assessment of $2,400.00 in costs as a “fine,” the Court would first point out that this was not a fine, but, rather as stated in both the Recommendation and Order of the Board, an assessment of administrative costs as provided by S.C. Code Ann. § 40-3-170 (2001). Both §§ 40-1-180 and 40-3-180 distinguish between costs and fines. In Chapter 3 of Title 40 of the Code, fines are defined under § 40-3-120; costs are allowed under an entirely different provision, the above-mentioned § 40-3-170. The Court is also aware that the Board, like all professional and occupational licensing boards within the Department of Labor, Licensing and Regulation, is largely self-supporting. $2,400.00 is a reasonable sum for the cost of investigation of three different projects; a four-hour hearing with five witnesses before a Hearing Officer producing over 150 pages of transcript and voluminous exhibits; the originally-scheduled final order hearing that was continued at Appellant’s request; and the final order hearing.

The law requires that if an individual stamps plans as the architect in responsible charge, he actually be (1) the architect, (2) responsible and (3) in charge. Based on substantial evidence, I find that the Hearing Officer and the Board properly concluded that he was none of these, and that he allowed himself to be used by Ed Bowers and AE as a front for their unlawful practice, stamping plans for work he never did and in some cases never saw, receiving money in return for the stamp with which he had been entrusted.

Sanctions Imposed By the Board

This court’s review of a final decision in a contested case decided by a professional or occupational licensing board within the South Carolina Department of Labor, Licensing and Regulation is governed by the provisions of S.C. Code Ann. § 1-23-380(A) (2005), S.C. Code Ann. § 1-23-380(B) (2005); see also S.C. Code Ann. § 1-23-600(D) (Supp. 2004). Under the standard of review in Section 1-23-380, this court “shall not substitute its judgment for that of the [Board] as to the weight of the evidence on questions of fact.” S.C. Code Ann. § 1-23-380(A)(6) (2005). However, this court

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 [Board];

(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 and capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.

Id.; see also Lark v. Bi-Lo, Inc., 276 S.C. 130, 276 S.E.2d 304 (1981).

Substantial evidence, as referenced in Section 1-23-380(A)(6)(e), is relevant evidence that, considering the record as a whole, a reasonable mind would accept to support the Board’s decision. E.g., Jennings v. Chambers Development Co., 335 S.C. 249, 516 S.E.2d 453 (Ct. App. 1999). The possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence. Id. Where there is a conflict in the evidence, the administrative agency’s findings of fact are conclusive. Id. This court cannot substitute its judgment for that of the Board upon a question as to which there is room for a difference of intelligent opinion. E.g., Chemical Leamen Tank Lines v. S.C. Pub. Service Comm’n, 258 S.C. 518, 189 S.E.2d 296 (1972). While a decision of an administrative agency will normally be upheld, the findings may “not be based upon surmise, conjecture, or speculation, but must be founded on evidence of sufficient substance to afford a reasonable basis for it.” Mullinax v. Winn-Dixie Stores, Inc., 318 S.C. 431, 443, 458 S.E.2d 76, 83 (Ct. App. 1995).

In addition, while this court is bound by the findings of the Board regarding the weight of the evidence on questions of fact, the issue of sanctions is appropriate for this court to address. It appears that the revocation of the Appellant’s license is excessive in light of the Appellant’s misdeeds. The Supreme Court has held that there be a balancing test in the area of physician discipline and it seems appropriate to apply a similar test here.

When making this determination, the Board must insure that the sanction imposed is consonant with the purpose of these proceedings. ‘The revocation of a physician's license, however, is designed not to punish the physician ... but to protect the life, health and welfare of the people at large. ...’ Levy v. Board of Registration & Discipline, 378 Mass. 519, 528, 392 N.E. (2d) 1036, 1041 (1979); see also Sherman v. Commission on Licensure & Practice, 407 A. (2d) 595 (B.C. 1979); Stojanoff v. Department of Registration & Education, 72 Ill. App. (3d) 585, 28 Ill. Dec. 811, 391 N.E. (2d) 10 (1979). It is therefore an essential element of the legislatively designed administrative regulatory scheme that the Board, in a disciplinary proceeding, scrupulously consider all factors relevant to continued licensure. It must, therefore, meticulously weigh the public interest and the, need, [sic] for the continued services of qualified medical doctors against the countervailing concern that society be protected from professional ineptitude. (Emphasis supplied.) In re Polk License Revocation, 90 N.J. 550, 579, 449 A. (2d) 7, 22 (1982).

Wilson v. State Board of Medical Examiners, 305 S.C. 194, 196, 406 W.E. 2d 345 (1991). Although there is not the same public policy need for qualified architects as for qualified physicians, the Board’s sanctions should have the same goal of protecting the public, not punishing the licensee.

CONCLUSION

For the foregoing reasons, the Order of the State Board of Architectural Examiners is AFFIRMED as to its findings.

The sanctions imposed are REVERSED as to the revocation of the Appellant’s license. It is Ordered that the Appellant’s license be suspended, retroactively to the date of the initial complaint, for a period of two years.

The assessment of the Board for $2,400 in administrative costs is hereby AFFIRMED.

AND IT IS SO ORDERED.

__________________________

Carolyn C. Matthews

Administrative Law Judge

December 29, 2005

Columbia, South Carolina