SC Administrative Law Court Decisions

This matter is before me pursuant to the appeal of Mody Clark and Barbara Clark (Appellants), from a final decision of the Respondent South Carolina Department of Social Services (Department), denying the renewal application of their day care license. The Administrative Law Judge Division (ALJD or Division) has jurisdiction to hear this matter pursuant to S.C. Code Ann. § 1-23-600 (1986 & Supp. 2001). A hearing on the appeal was held on June 19, 2002, at the offices of the Division in Columbia, South Carolina. Upon consideration of the briefs and the arguments presented at the hearing, together with a review of the applicable law, the decision of the Department is affirmed in keeping with this Order.

For many years, Moma Clark's Day Care has been in operation as a home day care, in the Appellants' home, keeping approximately forty (40) children at any one time. In March 2000, the Department began the renewal study for Moma Clark's day care license. As part of that renewal study, on-site visits were conducted on March 30, 2000, April 6, 2000 and April 11, 2000. In April 2000, the Department found twenty-one (21) regulatory deficiencies during the renewal study visits. However, none of these deficiencies involved violations found by the Fire Marshal. In fact, the Fire Marshal's office had given a clearance on their inspection in March 2000.

In June 2000, the Appellant's application for renewal was denied based upon the Appellant's failure to correct the above deficiencies and a previous history of noncompliance with regulatory matters. In its letter denying the Appellants' license renewal, the Department cited eighteen (18) deficiencies as the grounds for denial. No Fire Marshal concerns were cited as support for the Department's license denial.

A Department on-site visit was again conducted in August 2000 to monitor compliance with the previously cited deficiencies. Thirteen (13) deficiencies were noted and the Appellants were informed of these in a letter dated August 29, 2000. Additionally, as a result of its inspection, the Department requested another fire inspection due to concerns about the lack of a designated infant room at the day care as required by regulations. The Fire Marshal's office conducted that inspection and noted eleven (11) deficiencies in an Order dated August 29, 2000. The Appellants requested an appeal of the Fire Marshal's August 29 Order. In October 2000, Robert Polk, the State Fire Marshal, conducted a subsequent fire inspection and notified the Appellants of twelve (12) fire deficiencies in a decision letter dated November 8, 2000.

The Department conducted another on-site visit in September 2000 to monitor compliance and found eight (8) deficiencies that were noted in a letter dated September 26, 2000. On December 18, 2000, the Department again notified the Appellants that their application for renewal of their license had been denied. Ten (10) grounds were cited for the denial, one of which was a deficiency previously noted by the State Fire Marshal. The Appellants requested an administrative appeal of the Department's denial of renewal and a hearing was held on July 30, 2001. A Final Administrative Order dated October 5, 2001, upheld the denial of the license renewal.

The Appellants contend that the Fair Hearing Committee erred in allowing the Department of Social Services to introduce evidence concerning a Fire Marshal Inspection Order dated August 29, 2000, and that the Committee further erred in upholding the denial of the Appellants' day care license renewal based upon that evidence.

This case is before the ALJD as an appeal of the Department's decision pursuant to S.C. Code Ann. § 20-7-2760 (b) (Supp. 2001). As such, the ALJD sits in an appellate capacity under the Administrative Procedures Act (APA), rather than as an independent finder of fact. The provisions of the South Carolina APA govern an appeal from a Final Order of the Department. Under the APA, the Division "shall 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) (1986 & Supp. 2001). However, the Administrative Law Judge may reverse or modify the decision of the Department if substantial rights of the Appellant have been prejudiced because the administrative findings or decisions are "clearly erroneous in view of the reliable, probative and substantial evidence on the whole record," "affected by . . . error of law," or "arbitrary or capricious." Id; See also Lark v. Bi-Lo, 276 S.C. 130, 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. See, 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 agency's findings of fact are conclusive. Id.; See also Harbin v. Owens-Corning Fiberglas, 316 S.C. 423, 450 S.E.2d 112 (Ct. App. 1994). The party challenging an agency action has the burden of proving convincingly that the agency's decision is unsupported by substantial evidence. Waters v. S.C. Land Resources Conservation Comm'n, 321 S.C. 219, 467 S.E.2d 913 (1996). This tribunal cannot substitute its judgment for that of the Department upon a question as to which there is room for a difference of intelligent opinion. See, e.g., Chemical Leamen Tank Lines v. S.C. Pub. Serv. Comm'n, 258 S.C. 518, 189 S.E.2d 296 (1972).

At the hearing into this matter, the Department introduced evidence concerning an inspection and the deficiencies found by Deputy Fire Marshal Galloway (cited in the August 29, 2000 Order) and State Fire Marshal Robert Polk (cited in the November 8, 2000 decision letter). The Appellants object to the submission and consideration of that evidence because they appealed the inspection of Deputy Fire Marshal Galloway.

The facts of this case establish that though the Fire Marshal originally gave a clear fire inspection, the Department requested another fire inspection. The purpose of that inspection was to clarify which room the infants were staying in and whether that room met the fire codes for an infant room. In addition to looking into the infant room issue, Deputy Fire Marshal Galloway found eleven (11) fire deficiencies not cited on the previous inspection. After Deputy Fire Marshal Galloway issued an Order citing those deficiencies on August 29, 2000, the Appellants appealed that Order.

S.C. Code Ann. § 23-9-70 (1989 & Supp. 2001) provides that whenever an order is issued by a Deputy Fire Marshal finding that a building or structure is "especially liable to fire and which is so situated as to endanger lives or other property, or is deficient in fire or life protection . . . such occupant or owner may, within twenty-four hours, appeal to the State Fire Marshal, who shall, within ten days, during which time the order appealed from shall be stayed, review the order and file the decision." Here, after the Appellants appealed Deputy Fire Marshal Galloway's Order, State Fire Marshal Polk conducted an on-site inspection on October 26, 2000, as required by Section 23-9-70. As a result of that inspection, Fire Marshal Polk found twelve (12) fire deficiencies he enumerated in his November 8, 2000 decision letter which he sent to the Department and copied to the Appellants and their attorney. ⁽¹⁾ Section 23-9-70 further provides that "that any person who feels himself aggrieved, by any order or affirmed order of the State Fire Marshal may, within five days after the making or affirming of such order, appeal to an administrative law judge, as provided under Article 5 of Chapter 23 of Title 1. . . ." Fire Marshal Polk's November 8, 2000 decision letter affirmed Deputy Fire Marshal Galloway's findings. Though the letter was not addressed to the Appellants, it was nevertheless sent to the Appellants and their attorney, and established the final decision of the Fire Marshal. The Appellants have not filed a request for an appeal to the Administrative Law Judge Division of either the August 29, 2000 Order or the decision letter of November 8, 2000. ⁽²⁾ Therefore, introduction of that evidence was proper.

Moreover, even if the decision of the Deputy Fire Marshal or the State Fire Marshal was still under appeal because the November 8, 2000 letter, was not a final decision, introduction of that evidence was proper. "To prove the denial of due process in an administrative proceeding, a party must show that it was substantially prejudiced by the administrative process." Ogburn-Matthews v. Loblolly Partners (Ricefields Subdivision), 332 S.C. 551, 505 S.E.2d 598, 603 (1998). Furthermore, "[t]he presumption of regularity supports the official acts of public officers, and, in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties." See also Am. Jur. 2d Administrative Law § 528 (2000) ("Regardless of the standard of review employed, a presumption of regularity attaches to the official acts of public officers within the scope of their legally delegated authority."); Anonymous (M-156-90) v. State Bd. of Medical Examiners, 323 S.C. 260, 473 S.E.2d 870 (Ct. App. 1996) (citing the presumption of regularity as a valid theory.). Additionally, in State v. Payne, 332 S.C. 266, 504 S.E.2d 335 (1998), the S.C. Supreme Court held that a criminal defendant who seeks to collaterally attack a prior conviction which the State seeks to use under a sentence enhancement statute bears the burden of proving the prior conviction is "constitutionally defective or otherwise invalid by a preponderance of the evidence." Though this is not a criminal proceeding, the Department introduced the evidence of the Fire Marshal's findings to support its case that the Appellants' license should not be renewed. The Appellants, on the other hand, did not establish that the findings of the Fire Marshal were "constitutionally defective or otherwise invalid" by any means.

The Appellants argue that deficiencies found by the Fire Marshal were a significant basis for the Department's decision to deny the application for renewal. However, the evidence reflects that the Fire Marshal Order was only one small portion of the numerous regulatory deficiencies found. The Department conducted three (3) on-site visits in March and April 2000 in which the Department found twenty-one (21) deficiencies. None of those deficiencies included the Fire Marshal's concerns. Afterwards, the Department denied the Appellants' renewal application in June 2000, based on eighteen (18) uncorrected deficiencies. Again, none of the cited deficiencies included the Fire Marshal's concerns.

Subsequently, the Department continued to make site visits pursuant to the Appellants' appeal of its decision and the Department's obligation to oversee day care facilities. It was in these subsequent visits that the Fire Marshal deficiencies were found.

The Administrative Law Judge must affirm the Department's decision if the findings are supported by substantial evidence. Dorman v. Department of Health and Environmental Control, 565 S.E.2d 119 (S.C. App. 2002). As set forth above, substantial evidence is evidence which, when considering the record as a whole, would allow reasonable minds to reach the conclusion that the administrative agency reached in order to justify the agency's actions. Mullinax v. Winn-Dixie Stores, Inc., 318 S.C. 431, 458 S.E.2d 76 (Ct. App.1995). Many of the deficiencies cited by the Department before the Fire Marshal ever noted any concern at the Appellants' day care posed serious safety and health threats to children, including lack of supervision, storage of medications, firearms in the home, over enrollment, training of staff, lack of fingerprinting and background checks, maintenance of facility records, no infant room, and bottle propping. The evidence clearly supports the finding of those deficiencies. Therefore, the findings of the Fire Marshal Order were not a significant basis in the Department's decision and, more importantly, were not necessary to allow reasonable minds to conclude that the Appellants' renewal should be denied.

For the foregoing reasons, the Department's decision to deny the Appellants' request for renewal of their home day care license is hereby AFFIRMED.

AND IT IS SO ORDERED

____________________________ Ralph King Anderson, III

Administrative Law Judge

August 15, 2002

Columbia, South Carolina

1. The violations cited in the November 8, 2000 letter were: 1) Infant rooms did not have enough required separation; 2) Ceilings throughout the entire facility had not been rated; 3) Doors entering infant rooms had not been rated; 4) Doors to infant rooms did not have operable auto closers; 5) Rooms being used for infants did not have exit doors directly to the outside; 6) Facility did not have a manual fire alarm system; 7) There was no written record of required monthly fire drills; 8) There was no posted fire escape plan; 9) There was no controlled cooking plan; 10) Exit doors had unapproved locking hardware; 11) Curtains were not flame retardant; and 12) Infants were not kept in the infant room.

2. Though an Administrative Law Judge can rule on whether a party's constitutional rights have been violated, the separation of powers doctrine prohibits the Administrative Law Judge Division from ruling on the constitutionality of a statute. Ward v. State, 343 S.C. 14, 538 S.E.2d 245 (2000); Great Games, Inc. V. S.C. Dept. of Revenue, 339 S.C. 79, 529 S.E. 2d 6 (2000). Furthermore, a litigant's failure to appeal an agency's decision bars any subsequent suit concerning those issues. Bennett v. South Carolina Department of Corrections, 305 S.C. 310, 408 S.E.2d 230 (1991). See also Zaman v. S.C. State Bd. of Medical Examiners, 305 S.C. 281, 408 S.E.2d 213, 215 (1991) (One cannot complain of a due process violation if he has recourse to a constitutionally sufficient administrative procedure but merely declines or fails to take advantage of it.). Therefore, I make no findings here concerning whether or not S.C. Code Ann. § 23-9-70 (1989 & Supp. 2001) complies with due process.