South Carolina              
Administrative Law Court
Edgar A. Brown building 1205 Pendleton St., Suite 224 Columbia, SC 29201 Voice: (803) 734-0550

SC Administrative Law Court Decisions

CAPTION:
Marta D. McCollum, L.P.C. vs. SCDLLR, et al

AGENCY:
South Carolina Department of Labor, Licensing and Regulation

PARTIES:
Appellant:
Marta D. McCollum, L.P.C.

Respondent:
South Carolina Department of Labor, Licensing and Regulation, Board of Professional Counselors, Marriage and Family Therapists, and Psycho-Educational Specialists
 
DOCKET NUMBER:
05-ALJ-11-0121-AP

APPEARANCES:
For the Appellant:
Airial Kirk, Esquire
Elizabeth Crum, Esquire
Henrietta U. Golding, Esquire

For the Respondent:
Kenneth P. Woodington, Esquire
 

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).[1] 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.[2] 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.[3] 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



[1] In her appeal, Appellant does not challenge the Board’s determination that she engaged in a sexual relationship with a former client within six months of termination of the counseling relationship.

[2] Appellant does not argue that the regulations enacted in 2001 apply either. Essentially, her argument is that because the regulations in effect at the time of the misconduct were “repealed,” she cannot be charged with misconduct under the Old Code or the New Code.

[3] See 23A S.C. Code Ann. Regs. 36-19(A)(10) (Supp. 2005) (“Professional Counselors shall not…engage in sexual, physical, or romantic intimacy with clients within two (2) years after terminating the counseling relationship.”)


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