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:
Port Elsewhere II vs. SCDLLR

AGENCY:
South Carolina Department of Labor, Licensing and Regulation

PARTIES:
Appellant:
Port Elsewhere II

Respondent:
South Carolina Department of Labor, Licensing and Regulation, State Board of Funeral Service
 
DOCKET NUMBER:
05-ALJ-11-0251-AP

APPEARANCES:
For Appellant:
John D. Hawkins, Esquire
Andrea M. Hawkins, Esquire

For Respondent:
M. Kent Lesesne, Esquire
 

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


Brown Bldg.

 

 

 

 

 

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