ORDERS:
ORDER
STATEMENT
OF THE CASE
The
above-captioned matter is before this Court pursuant to S.C. Code Ann. §
40-19-160 (2001) and S.C. Code Ann. § 1-23-600(D) (Supp. 2005) for an
administrative appeal. In this matter, Appellant Port Elsewhere II appeals the
May 25, 2005 Order issued by Respondent South Carolina Department of Labor,
Licensing and Regulation, State Board of Funeral Service (Board), in which the
Board denied Appellant’s application for a permit to operate a funeral home at
its Graceland Mortuary location in Greenville, South Carolina. Appellant
contends that the Board’s decision to deny its application was arbitrary,
capricious, and constitutes an abuse of discretion because the denial was based
solely upon unfounded findings that Appellant had committed misconduct at
several funeral merchandise retail sales outlets it operates. For the reasons set
forth below, I find that the Board’s denial of Appellant’s application must be
reversed and that the requested funeral home permit should be issued to
Appellant.
DISCUSSION
Pursuant
to the appellate standard of review set forth in S.C. Code Ann. § 1-23-380(A)(6)
(2005), this Court may not substitute its judgment for that of the Board on
questions of fact, but may reverse or modify the decision of the Board on
appeal if the Board’s findings are, among other things, “clearly erroneous in
view of the reliable, probative and substantial evidence on the whole record”
or “arbitrary and capricious or characterized by abuse of discretion.” S.C.
Code Ann. § 1-23-380(A)(6)(e), (f). In the case at hand, the Board denied
Appellant’s application for a funeral home permit solely because it had
previously found that Appellant had committed several violations of the funeral
service practice act related to its operations under four retail sales outlet
permits. (R. at 1, 31.) However, in Appellant’s appeal of that disciplinary
matter, this Court found that the Board’s determination on Appellant’s alleged
violations was not supported by substantial evidence and reversed the Board’s
Final Order revoking Appellant’s retail sales outlet permits. See Port
Elsewhere II v. S.C. Dep’t of Labor, Licensing & Regulation, State Bd. of
Funeral Serv., Docket No. 05-ALJ-11-0201-AP (S.C. Admin. Law Ct. Feb. 10,
2006). Therefore, while the prior misconduct of an applicant related to the
practice of funeral service would generally be a sufficient basis upon which to
deny an application for a funeral home permit, the misconduct relied upon by
the Board in this matter is unsupported by substantial evidence in the record
and cannot form a valid basis for the denial of Appellant’s application.
Because the Board’s sole reason for denying Appellant’s application for a
funeral home permit at the Graceland Mortuary is without merit, the Board’s
decision to deny Appellant’s application must be reversed as unsupported by
substantial evidence and characterized by an abuse of discretion. Further, as
Appellant appears to otherwise meet the requirements for a funeral home permit
(R. at 5), the Board must, in light of the reversal of its denial, issue
Appellant the requested funeral home permit.
ORDER
For
the reasons set forth above,
IT
IS HEREBY ORDERED that the Board’s May 25, 2005 Order denying Appellant’s
application for a funeral home permit for its Graceland Mortuary in Greenville,
South Carolina, is REVERSED.
IT
IS FURTHER ORDERED that, in light of this reversal, the Board must ISSUE a funeral home permit to Appellant for the Graceland Mortuary in Greenville,
South Carolina.
AND
IT IS SO ORDERED.
______________________________
JOHN D.
GEATHERS
Administrative
Law Judge
1205 Pendleton
Street, Suite 224
Columbia, South
Carolina 29201-3731
February 10, 2006
Columbia, South Carolina |