ORDERS:
ORDER
STATEMENT
OF THE CASE
This
matter is before me pursuant to the appeal by Marta D. McCollum, L. P. C.
(Appellant) of the South Carolina Department of Labor, Licensing and
Regulation, Board of Professional Counselors, Marriage and Family Therapists,
and Psycho-Educational Specialists’ (Board) Final Order dated March 14, 2005.
In its Final Order, the Board found that the Appellant violated S.C. Code Ann.
§§ 40-75-110(A)(8) (Supp. 2003) and 23A S.C. Code Ann. Regs. 36-5.1(A) and
36-5.2(A), (B), and (D) (1987) of the Code of Ethics for Professional
Counselors. The Board suspended Appellant’s license for six (6) months, at the
conclusion of which her license would be placed on probation for three (3)
years. Appellant was also ordered to undergo counseling and supervision by an
L.P.C. supervisor during the six (6) month suspension and subsequent three (3)
year probationary period. On June 21, 2005, I issued an Order Granting Stay,
which stayed the Board’s Final Order pending the resolution of this appeal.
Oral arguments on this appeal were heard before me at the Administrative Law
Court (ALC or Court) in Columbia, South Carolina, on August 25, 2005.
FACTUAL
BACKGROUND
Appellant
is a professional counselor licensed by the Board. On July 20, 2004, the Board
issued a Formal Accusation against Appellant alleging that she committed professional
misconduct by engaging in an intimate relationship with a patient in 1999, within
six (6) months of the termination of their counseling relationship. A hearing
was held before the Board on January 6, 2005, and the Board issued an Order on
March 14, 2005. In its Order, the Board found that Appellant violated S.C.
Code Ann. §§ 40-75-110(A)(8) (Supp. 2003) and 23A S.C. Code Ann. Regs.
36-5.1(A) and 36-5.2(A), (B), and (D) (1987) of the Code of Ethics for
Professional Counselors. As a result, the Board ordered Appellant to close out
her case load within three (3) months of date of that Order, after which her
license would be suspended for six (6) months. At the conclusion of the six
(6) month period, her license would then be placed on probation for three (3)
years. Appellant was also ordered to undergo counseling and supervision by an
L.P.C. supervisor during the suspension and probation period, and to appear
before the Board at the conclusion of the probation period to determine whether
her license would be renewed or revoked. On April 15, 2005, Appellant then
filed this appeal with the ALC and simultaneously filed a Motion for a Stay of
the Board’s Order, which was granted on June 21, 2005.
JURISDICTION
AND STANDARD OF REVIEW
Jurisdiction
on appeal is vested in the Administrative Law Court pursuant to S.C. Code Ann. §§
1-23-600 (2005) and 40-1-160 (2001). The provisions of the South Carolina
Administrative Procedures Act (APA) govern an appeal from a Final Order of the Board. Byerly Hosp. v. South Carolina State Health & Human Servs. Fin. Comm’n,
319 S.C. 225, 229, 460 S.E.2d 383, 385 (1995).
A
final decision of the Board may be reversed or modified if substantial rights
of the appellant have been prejudiced because the administrative findings or
decision are clearly erroneous in view of the reliable, probative and substantial
evidence on the whole record, are arbitrary or capricious, are in violation of
constitutional or statutory provisions, are made upon unlawful procedure, or
are affected by other error of law. S.C. Code Ann. § 1-23-380(A)(6)(2005).
Furthermore, a finding of fact by the Board will not be overturned by this Court
“unless there is no reasonable probability that the facts could be as related
by a witness upon whose testimony the finding was based.” Lark v. Bi-Lo,
276 S.C. 130, 137, 276 S.E.2d 304 (1981).
“Substantial
evidence” is that evidence which, in considering the record as a whole, would
allow reasonable minds to reach the conclusion that the administrative agency
reached. Jennings v. Chambers Development Co., 335 S.C. 249, 516 S.E.2d
453 (1999). It is “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Midlands Utility, Inc. v. S.C. Dep’t of
Health and Environmental Control, 298 S.C. 66, 69, 378 S.E.2d 256, 258
(1989). The possibility of drawing two inconsistent conclusions from the
evidence will not mean the agency’s conclusion was unsupported by substantial
evidence. Palmetto Alliance, Inc. v. S. C. Public Service Comm’n, 282
S.C. 430, 432, 319 S.E.2d 695, 696 (1984).
Where
there is a conflict in the evidence, the agency’s findings of fact are
conclusive. Id.; see Harbin v. Owens-Corning Fiberglas,
316 S.C. 423, 450 S.E.2d 112 (Ct. App. 1994). 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. Chemical Leamen Tank Lines v. S.C. Pub.
Serv. Comm’n, 258 S.C. 518, 189 S.E.2d 296 (1972). The Board has the
benefit of seeing and hearing the testimony of the witnesses and judging their
credibility and demeanor. The factual findings of an administrative agency
[the Board] are presumed to be correct and will be set aside only if
unsupported by substantial evidence. Kearse v. State Health and Human
Finance Commission, 318 S.C. 198, 456 S.E.2d 892 (1995). Applying the
“substantial evidence rule,” an appellate court may not substitute its judgment
for that of the agency as to the weight of the evidence on questions of fact.
S.C. Code Ann. § 1-23-380 (A)(6) (Supp. 2003); Toussaint v. State Board of
Medical Examiners, 303 S.C. 316, 400 S.E.2d 488 (1991).
DISCUSSION
In
its Final Order, the Board found that Appellant violated the Code of Ethics (Previous
Code) that was in effect at the time the professional misconduct occurred in
1999. Effective May 25, 2001, those regulations were changed by the
Legislature. However, Appellant argues that rather than being amended, the
Previous Code was repealed in its entirety by the Legislature and replaced with
the subsequent regulations that took effect on May 25, 2001. Accordingly,
Appellant argues on appeal that the Board erred as a matter of law in finding
that the Previous Code was amended rather than repealed by
the 2001 Code of Ethics (New Code). As
a result, Appellant asserts that the Board could not charge her with a
violation of a regulation which has been replaced in its entirety. Conversely, the Board argues that the Previous Code was amended in
2001 and that Appellant was properly charged with violating the regulations in
effect at the time the misconduct occurred.
“The
cardinal rule of statutory interpretation is to ascertain the intent of the
legislature.” State v. Scott, 351 S.C. 584, 588, 571 S.E.2d 700, 702
(2002). A statute should be given a reasonable and practical construction
consistent with the purpose and policy expressed in the statute. Davis v. NationsCredit
Fin. Servs. Corp., 326 S.C. 83, 484 S.E.2d 471 (1997). Furthermore, regulations must be construed to give
practical meaning to the legislature's intent and to avoid an absurd result. See Kiriakides v. United Artists Communications, 312 S.C. 271, 275, 440
S.E.2d 364, 366 (1994) citing Stackhouse v. Rowland, 86 S.C. 419, 68
S.E. 561 (1910) ("However plain the ordinary meaning of the words used in
a statute may be, the courts will reject that meaning when to accept it would
lead to a result so plainly absurd that it could not possibly have been
intended by the Legislature or would defeat the plain legislative intent…If
possible, the court will construe the statute so as to escape the absurdity and
carry the intention into effect."). Additionally, the
construction of a regulation by the agency charged with executing the
regulations is entitled to the most respectful consideration and should not be
overruled without cogent reasons. Converse Power Corporation v. South
Carolina Dep’t of Health and Environmental Control, 350 S.C. 39, 564 S.E.2d
341 (Ct. App. 2002).
In State v. Thrift, 312 S.C. 282, 440 S.E.2d 341 (1994), the Supreme Court addressed
the issue of whether the Legislature implicitly repealed a statute,
specifically S.C. Code Ann. § 8-13-490, the “old” Ethics Act, by enacting a
“new” Ethics Act in 1991. In that case, even though the Ethics Act did not
contain an explicit provision concerning the repeal of Section 8-13-490 and did
not contain a savings clause addressing that section, the Court found that it
was the legislative intent to amend rather than repeal the “old” Ethics Act. The
Court found that based on the purpose of the Act and the fact that the “new”
Act imposed more stringent guidelines, the legislature could not have intended
to allow someone to escape prosecution for acts committed prior to the legislative
amendment to the regulation.
This
Court does not find that the Legislature intended to repeal the
effect of 23A S.C. Code Ann. Regs. 36-5.2(D) when it enacted 23A S.C. Code Ann.
Regs. 36-19(A)(10) in 2001. To adopt the argument asserted by Appellant would
be illogical and lead to an absurd result. It is clear that
there was no intent by the Legislature to remove the prohibition of sexual
contact between a counselor and a patient. To the contrary, the Legislature
made the prohibition of sexual contact between a counselor and a patient even
more stringent by increasing the “no contact” period from six months to two
years. That,
combined with the manifest purpose of the regulations to protect the health and
safety of the public, clearly shows that the Legislature could not possibly
have intended for someone who committed misconduct under the Old Code of Ethics
to escape culpability for their actions due to the amended regulations. See In re Norton, 366 S.C. 341, 343, 622 S.E.2d 527, 528 n.2 (2005) (Attorney
who committed misconduct before the effective date of amendments to the Rules
of Professional Conduct charged with violating the standard in effect at the
time of the misconduct notwithstanding the amendments); see also South
Carolina State Bd. of Medical Examiners, 325 S.C. 166, 480 S.E.2d 724
(1997) (Physician’s conduct with respect to two patients was to be judged by
standard in effect at time of alleged misconduct, notwithstanding amendments to
the applicable ethics regulations).
In
support of her argument, Appellant also asserts that the Instructions in the
State Register and the Editor’s Notes to the New Code indicate that the
Legislature intended to repeal rather than amend the regulations. The
instructions for the New Code in the State Register states:
Instructions: Amend
current regulations, by replacing them in their entirety with new regulations
as they appear in the text below.
Furthermore,
the Editor’s Note to the New Code states:
The following
regulations were added by State Register Volume 25, Issue No. 5, Part II, eff.
May 25, 2001. They replace previous regulations effective June 26, 1987, as amended.
However, neither
the Instructions nor the Editor’s Notes states that the regulations are being
repealed.
“Implied repeal
of statutes is not favored and any reasonable construction will be adopted to
avoid such a result.” City of Myrtle Beach v. Richardson, 280 S.C. 167,
169, 311 S.E.2d 922, 924 (1984); see also Eagle Container Co., LLC v.
County of Newberry, 622 S.C. at 741 (Ct. App. 2005) (“Repeal by implication
is disfavored, and is found only when two statutes are incapable of any reasonable
reconcilement.”). Here, there is no express intention by the Legislature to
repeal these regulations. Rather, in amending these regulations, it appears
that the Legislature was merely restructuring the Code of Ethics applicable to
professional counselors. Moreover, the fact that the amendments did not repeal
any of the prohibitions imposed on counselors but only made them more stringent
further supports a presumption against implied repeal.
However,
even if the regulations were presumed to be repealed rather than amended, “[t]he repeal and simultaneous reenactment of substantially the same statutory
provision are to be construed, not as an implied repeal of the original
statute, but as an affirmance and continuation thereof.” S.C. Mental Health
Comm’n v. May, 226 S.C. 108, 116, 83 S.E.2d 713 (1954). Furthermore, a
repeal of the Old Code would not invalidate the charges of
professional misconduct against Appellant for “[e]ven where no question of
vested rights is involved, the presumption is that repeal of a statute does not
invalidate the accrued results of its operative tenure.” City of Myrtle
Beach at 926. Accordingly, Appellant would not be able to escape
culpability for her actions.
ORDER
For
all the foregoing reasons, it is hereby:
ORDERED that the Board’s Order dated March 14, 2005 is affirmed.
AND
IT IS SO ORDERED.
__________________________________
Marvin
F. Kittrell
Chief
Administrative Law Judge
February 1, 2006
Columbia, South Carolina
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