SC Administrative Law Court Decisions

This matter is before the Administrative Law Judge Division ("Division") pursuant to a request for a contested case hearing by Linda Nichols, administrator of Bellamy's Community Care Home, 3684 Sea Mountain Highway, Little River, South Carolina ("Respondent"). Respondent appeals the determination by the South Carolina Department of Health and Environmental Control ("Petitioner," "DHEC" or "Department") to suspend DHEC License # CRC-846 ("license") granted to Respondent on December 1, 2001.

DHEC's determination was based upon alleged violations of S.C. Code Ann. Regs. § 61-84. On February 15, 2002, a DHEC inspector conducted an unannounced inspection at Respondent's location. After meeting with some residents, as well as with representatives of local law enforcement and of several other agencies of the State of South Carolina, the inspector wrote a one page memo suspending the license without any explanation to Respondent. On the date of the inspection, all residents were either removed from the facility or left the facility.

A contested case hearing was held on September 4, 2002 at the offices of the Administrative Law Judge Division in Columbia, South Carolina. Upon careful review of the testimony presented at the hearing and the evidence placed into the record, I find and conclude that the action taken by the Department to impose a suspension of the license on the day of the visit on February 15, 2002 was unlawful and without any statutory authority. I further find that there is insufficient evidence in the record to support the Department's findings in its determination letter of February 25, 2002 that:

(1) Respondent failed to provide to a resident breakfast or medications on the morning of February 14, 2002;

(2) the stoves in both Building 1 and Building 2 were inoperable and there was "little to no food" in Building 2;

(3) there was "unapproved construction" in Building 2;

(4) the flooring was in disrepair in Building 2;

(5) Respondent failed to provide insulin to a resident who was insulin dependent; and

(6) Respondent made cleaning supplies accessible to residents in the laundry room of Building 2.

The court does find, upon admission by Respondent, that a doorknob was missing on an exterior door to Building 2, but the evidence does not support the imposition of a fine for this violation.

Accordingly, the suspension is permanently vacated and the license is restored to Respondent upon the execution of this Order. All fines and penalties levied by the Department against Respondent are likewise vacated since they resulted from an unlawful action by the Department.

SUMMARY OF THE EVIDENCE

Witnesses for the Department:

Dennis Gibbs. The Department presented the testimony of several of its employees. The

first to testify was the Director of its Division of Health Licensing, Dennis Gibbs. Mr. Gibbs has been with the Department for over 14 years and has been the director of this division for the last three months, replacing Jerry Paul, who recently assumed the position of Director, Bureau of Health Facilities. Mr. Gibbs testified that the Department only revokes a license when the actions by the licensee are egregious. However, he also stated that a license may be suspended where there is no imminent threat to health, safety and welfare of the residents. Such a license suspension order would include a prohibition that no new residents could be admitted nor any residents readmitted until the suspension had been vacated or lifted.

Mr. Gibbs reiterated on several occasions that DHEC did not issue the immediate suspension in this case pursuant to the "immediate suspension" provision found in S.C. Code Ann. § 44-7-320 (A)(3). He stated that the license was suspended because of the violations found on the date of the inspection and due to the previous history at the location. He testified that the Department had the authority "to suspend a license on the spot that day" if the inspector found that the Department's regulations had been violated. Further, he stated that such authority is found in S.C. Code Ann. § 44-7-320 (A)(1)(a).

Mr. Gibbs testified that other state agencies, such as the Department of Social Services and the Department of Health and Human Services, refer individuals or residents to community residential care homes or facilities. He noted that the Adult Protective Services, which is under the jurisdiction of the Department of Social Services, has a duty to ensure the safety of the residents in these types of facilities. He testified that DHEC does not have the authority to remove residents; they either leave voluntarily, at the request of family, are removed by Adult Protective Services or are removed by local law enforcement. However, he stated that DHEC notifies these agencies as well as local law enforcement when it believes there is the possibility of an imminent threat to the health and safety to the residents in a community residential care facility.

Mr. Gibbs testified that the penalties assessed against Respondent were for previous violations by Respondent over the last several years. He stated that pursuant to DHEC regulations, since July 21, 2001 the Department can review violations which occurred at a location within 36 months of an inspection and is authorized to assess penalties for them.

Gina Phipps Anderson. Gina Anderson is an Inspector III with DHEC. She has been employed with DHEC for 3 years and lives at Loris, South Carolina. She inspects some 30 to 50 facilities such as hospitals, community residential care homes, and others in a three county area near her home. Her inspections consist of both general inspections, complaint inspections and unannounced inspections. She testified that she has inspected Respondent a number of times and some problems she has found concern the dispensing of medications, record keeping, facility maintenance and staff.

Ms. Anderson testified that as a result of her second visit in April 2000, Respondent was assessed a fine of $ 2,500.00, which was paid. During her follow-up visit in July of 2000, she noticed improvement at the facility. She testified that she, together with three other inspectors from DHEC, visited the location on November 20, 2001. An inspection report was later prepared and sent to Respondent on December 4, 2001.

Ms. Anderson testified that she was directed by her team leader, Ed Yashinsky, to conduct an unannounced inspection at the location on February 15, 2002. She was the only representative from DHEC at the location during the inspection. On the afternoon of February 14, 2002, she contacted the local law enforcement and representatives of the Department of Social Services (Adult Protective Services). She communicated with them the morning of February 15, 2002, and coordinated a meeting with them at Stevens Restaurant at approximately 11:00 to 11:30 a.m. on that day.

Ms. Anderson stated that her duty or mission was to determine if there was any immediate danger to the residents at the facility. After the meeting at Stevens Restaurant, Ms. Anderson went to the facility and met with Ms. Linda Nichols, the administrator, for a short period of time. She then began interviewing residents in Building 2 and she testified that no resident reported any neglect or abuse. She talked with representatives from the various state agencies who came to the facility as a result of her telephone calls and conversations. She reviewed the Medication Administrative Records ("MAR's"). After talking via telephone on various occasions with DHEC officials Mr. Jashinsky, Mr. Cook and Mr. Paul who were in Columbia, she made the recommendation that the license at the facility be suspended immediately. Her recommendation was agreed to by her supervisors and Mr. Paul provided some language to Ms. Anderson to include in the one page memo she left at the facility. She prepared no inspection report on the date of the inspection. Ms. Anderson testified that the immediate suspension for the facility was based on its prior history of violations and the violations she found on the date of the inspection on February 15, 2002.

As to the alleged violations on February 15, 2002, Ms. Anderson testified:

• that new cabinets were being installed in Building 2 which constituted "construction" requiring architectural approval;
• that the stove was not hooked up there although the hood was attached to the wall;
• that there was no means to cook food for the residents for dinner because the stove in Building 2 was inoperable. Ms. Anderson stated that Ms. Nichols advised her the stove was being hooked up in Building 2 and the repairman was returning later that day to finish the job. She testified that when she left the facility at approximately 5:00 p.m., the repairman had not returned. However, she also stated that she observed meat in the deep freezer and saw a pot on the stove in Building 1. Further, she testified that no one told her that the residents were not being fed properly. Ms. Anderson also admitted that Ms. Nichols told her that the residents were given sandwiches for lunch and that food would be obtained for the residents for their dinner from outside the location, if required; and
• that a door knob was missing on an exterior door in Building 1.

Michael Locker. Mr. Locker has been employed by DHEC for the last 3 ½ years as a fire and life safety inspector. He inspects facilities for the Department. He was formerly employed for nine years with the Columbia Fire Department.

Mr. Locker testified that he inspected the location on December 10, 2001 and found various violations of state codes in the buildings.

Edward Jashinsky. He testified that he has been employed as an inspector with the Department since 1995. He is the team leader for these health care facilities and his office is in Columbia. Mr. Jashinsky has conducted several inspections at this location, one occurring on July 21, 1999. Also, he initiated telephone conversations with Ms. Nichols on January 16 and 17, 2002 in an effort to seek resolution of the violations inspectors found at the facility during the November 2001 inspection.

He had a telephone conversation with Gina Anderson on February 14, 2002 during which they discussed the possible imminent danger to the health and safety of the residents at the location. In the course of that conversation, Mr. Jashinsky advised Ms. Anderson to make contact with law enforcement and several state agencies. Further, he had numerous telephone conversations with Ms. Anderson on February 15, 2002, as well as with Mr. Jerry Paul, the then Director of the Division of Health Licensing. He provided input in the final decision to suspend the license on February 15, 2002. He noted that DHEC officials in Columbia decided that Ms. Anderson would be directed not to write an inspection report on February 15, 2002 which would list any alleged violations.

Mr. Jashinsky testified that he and the others involved followed the procedures outlined in the Department's "Operations Manual." ⁽¹⁾ He testified that he knew that the renovation of the kitchen was ongoing.

Ellen Young. Ms. Ellen Young was called by the Department as a witness. She is employed as a case manager and social worker with Columbia Health Care, a private company employed by Community Long Term Care, a division of the Department of Health and Human Services. Her duties are to provide health care in homes for people who are Medicaid eligible.

Ms. Young telephoned the facility on February 13, 2002 and no one answered the telephone. She testified that she needed to visit a client of her employer and conduct an initial assessment to determine the level of care the client needed and was being provided. At approximately 10:30 a.m. on February 14, 2002, Ms. Young drove to the facility. She knocked several times at the facility and after there was no answer, she returned to her car to telephone local representatives of the Department of Social Services. While in her car, Ms. Young was approached by Mr. Wayne Goff. She then went into Building 2 and visited with her client. Ms. Nichols, the administrator, was not at the facility when she arrived and during the consult.

Ms. Young stated that her client had a gown and a shirt on. She talked with her client at a table in the hallway. She observed the client to be alert. The client told her she had not had a bath that morning nor had she been served breakfast. Mr. Goff, who was present during this conversation, left and returned with some breakfast for the client. Subsequently, Mr. Bellamy joined Ms. Young and Mr. Goff.

Ms. Young reviewed the medication list for the client. She testified that the medicines shown to her by the nurse did not match the MAR. She did state that a majority of the client's medicines were produced. She discussed her concern with both Mr. Bellamy and Mr. Goff that the insulin should be given to the client at approximately 10:00 a.m. and at 5:00 p.m. each day. Further, she told them that an aide should be hired to assist the patient with her bathing and dressing each morning. Ms. Young stated that the medical notes she reviewed reflected that her client had moderate short term memory loss and was forgetful of what medicines she needed to take.

Later, Ms. Young called the Ombudsman Office and told them of her concern for the safety of her patient. The ombudsman told her to call the local police. She met with them later at her office.

On February 15, 2002, Ms. Young met with Ms. Anderson and representatives of local law enforcement and other state agencies, and they went to the location. Ms. Young testified that it was a "madhouse" at the facility. When she left, staff from a facility in Tabor City, North Carolina had arrived, were packing the belongings of her client and were in the process of transporting her client to their facility.

As a result of her observations at the facility, Ms. Young made no determination that any resident was in imminent danger. However, she was told by both Ms. Anderson and by the representatives of the Department of Health and Human Services that the patients were being moved. She did not know who made the decision requiring the movement of the residents elsewhere.

Witnesses for the Respondent:

Sandra Enzor. Ms. Enzor is employed with Adult Protective Services at the Horry County Department of Social Services office. She testified that her agency takes custody of adults who are in imminent danger for their health and safety and then places them elsewhere.

On the morning of February 15, 2002, Ms. Enzor met with Ms. Anderson and others at Stevens Restaurant. She testified that all there knew that the facility would be closing. She stated that they all left the restaurant and drove to the location where Ms. Anderson then asked them to interview or talk with the residents. Ms. Enzor testified that on several occasions Ms. Anderson told her "the facility was closing" and that Ms. Anderson told her that "all the residents had to be out of the facility by 12:00 midnight."

Ms. Enzor testified that she talked with the residents and she found no threat to them, nor did she find they had been abused or suffered any harm. She stated that she called her supervisor and related that the facility was being closed. She also stated that her supervisor, Larry Dorman, had told her earlier that the facility would be closing. Ms. Enzor stated that Ms. Anderson asked them to assist with removing residents from the facility.

Ray Singleton. Mr. Singleton is a case manager and counselor with the Waccamaw Mental Health Center, an agency within the Department of Mental Health. He testified that he went to the location on February 15, 2002 with several fellow employees from the Waccamaw Mental Health Center.

Mr. Singleton testified that his supervisor, Ms. Martha Scott, telephoned him from her office in Kingstree, South Carolina and asked him to go to the facility. Further, she told him to "round up" a number of fellow counselors at his place of employment and ask them to go to the facility. Both

Mr. Singleton and his supervisor wished to have sufficient vehicles at the location to be able to move their clients if necessary.

Mr. Singleton testified that at approximately 12:00 a.m. to 12:15 p.m., he arrived at Stevens Restaurant to meet with the others. However, they had all left to travel to the facility. He then drove to the facility where he began to comfort the five clients which his agency had placed with Respondent.

After some period of time had elapsed, Ms. Anderson told Mr. Singleton that his agency had to remove its clients. It was his impression that the clients of his employer could no longer reside at the facility but had to move or be moved elsewhere. However, he preferred that they remain at the facility since Respondent had a history of taking good care of its residents.

Mr. Singleton testified that his clients were upset when he told them they had to leave the facility. He had to console them. He testified that he was not made aware of any problem at the facility by anyone; however, he did notice some disarray in the kitchen around the stove.

Martha Scott. Ms. Scott is the Toward Local Care Coordinator for theWaccamaw Mental Health Center. Her office is located in Kingstree, South Carolina. She testified that she received a telephone call from Larry Dorman of the Department of Social Services at about 9:30 a.m. on the morning of February 15, 2002. He informed her of the possible closure of the facility by DHEC. Ms. Scott then called her case manager, Ray Singleton, to go to the facility and meet with their clients. That same morning she received several messages on her pager from Ms. Anderson, urging her to return the call since it was an emergency.

Ms. Scott had conversations with Mr. Singleton during the morning and afternoon of February 15, 2002 about the situation. Mr. Singleton called and told her he had been given the directive to relocate their clients. Ms. Scott stated she did not welcome having to move the residents. Further, she noted that if she had been told that the license was being suspended, she would not have allowed her residents to be moved from the facility. She noted that it is traumatic to move clients, especially when they have mental illnesses.

Ms. Scott testified that she has never been told that the license was being suspended. Further, she testified that she has never received any follow up from DHEC since February 15, 2002. She testified that when DHEC made the decision to close the facility, she never questioned their judgment nor the requirement that her residents be moved.

Linda Nichols. Ms. Nichols is the administrator of Bellamy's Community Care Home, Inc. She testified that she gave an insulin shot to the 84 year old resident who is managed by Columbia Health Care at 8:00 a.m. on February 14, 2002. Ms. Nichols further stated that it is her normal routine to give this patient her shot every morning at that time.

Ms. Nichols testified that this particular resident stays up late each night watching television and that she gets up as late as 11:00 a.m. Although the normal time for serving breakfast is at 7:00 a.m., she testified that she or her staff serves breakfast (which normally is cereal with bananas and some juice) to this resident after she wakes up.

Ms. Nichols testified that on February 15, 2002, Ms. Anderson, an inspector with DHEC, came to the facility and advised her that a complaint had been filed; however, Ms. Anderson did not explain to her what the alleged complaint was and summarily dismissed her. Ms. Anderson then went into another room with the representatives from the other state agencies and representatives from local law enforcement, and Ms. Nichols was excluded from their conversation. Ms. Anderson later told Ms. Nichols that she had decided to close down the facility.

Ms. Anderson also told Ms. Nichols that the residents had been eating cold food, the stove was not working, that some patients were not being given their medicine, and that she found the facility in imminent danger.

Ms. Nichols showed Ms. Anderson the food items in the kitchen. At the time of the inspection, the kitchen was in some disarray. There were kitchen cabinets in pasteboard boxes on the floor in the kitchen area, and the stove had been disconnected earlier that day by a repairman who was there installing a security device. Ms. Nichols told Ms. Anderson that she was cooking food (beef stew in a pot on the stove) in Building 1 for the residents. Ms. Anderson did not express any concern regarding a lack of food (quantity) on the premises to feed the residents.

Ms. Anderson asked Ms. Nichols to provide some bags for the residents to use to pack their belongings and personal items. To comply with this request, Ms. Nichols had to unlock the cabinet containing the bags, which also contained various items of cleaning solution. Ms. Nichols was then directed by Ms. Anderson to leave the area and go to the front of the facility. Thus, she was not able to secure these items of cleaning solution from the residents since Ms. Anderson had taken over control of them.

Ms. Nichols stated that the people took over the facility and went through all the personnel files, and took their MAR's and all their individual care plans. The facility was cleaned out and little

or no records were left. The agency representatives left no documents indicating that they had removed the records from the facility.

Ms. Nichols stated that the residents did not want to leave the facility.

BURDEN OF PROOF

The Department imposed penalties on Respondent for allegedly violating S.C. Code Ann. Regs. 61-84 and S.C. Code Ann. § 44-7-320 (Supp. 2001) . Basic principles of administrative law establish that an agency bears the burden of proof in establishing that a penalty is justified. See Peabody Coal Co. v. Ralston, 578 N.E.2d 751 (Ind. Ct. App. 1991); Shipley, South Carolina Administrative Law § 5-79, 5-80 (1989). The caption, therefore, pursuant to an Order of the Division dated June 12, 2002, was changed to reflect the correct allocation of the burden of proof.

FINDINGS OF FACT

After careful consideration and review of all the evidence, and having considered the credibility of the witnesses and the exhibits, I make the following findings of fact by a preponderance of the evidence:

• This Division has personal and subject matter jurisdiction.
• Notice of the date, time, place, and nature of the hearing was given to all parties.
• Bellamy's Community Care Home is a residential care facility located at 3684 Sea Mountain Highway, in Little River, Horry County, South Carolina. The facility consists of two buildings, designated as Building 1 and Building 2.
• On November 30, 2001, the Department issued a renewal of DHEC License # CRC-846 to Sheila Bellamy Goff for Bellamy's Community Care Home, with a maximum capacity of 23 beds. The administrator at Bellamy's Community Care Home is Linda Nichols.
• On February 14, 2002, Ellen Young, a case manager and social worker with Community Long Term Care, visited Respondent's facility to see one of her clients who was a resident there. As a result of her visit, she filed a complaint with the Department alleging, among other things, that her client had not received medication or breakfast on the morning of February 14, 2002.
• On February 15, 2002, Gina Phipps Anderson, an inspector with the Department for three years, conducted an unannounced inspection at Respondent's facility. She was the only representative of the Department present during the inspection. Also present during the inspection were Ms. Young of Community Long Term Care, Sandra Enzor of the Horry County DSS Adult Protective Services, Ray Singleton of Waccamaw Mental Health Center and several of his fellow employees, and a representative of the Horry County Police Department, among others.
• Prior to the inspection, Ms. Anderson, as well as her team leader, either talked via telephone or met with representatives of the Department of Social Services (Adult Protective Services) and from the Department of Health and Human Services, as well as local law enforcement officers. The Department was concerned about immediate danger to the residents at the facility as a result of the complaint received on February 14, 2002. Some time prior to the inspection, Ms. Anderson mentioned to Ms. Enzor that the facility would be closing.
• At the time of the inspection, the kitchen in building 2 was undergoing some renovations. The tile work on the floor had not been completed. Resp. Ex. 14. Further, the gas stove had been disconnected and pulled away from the wall to allow an employee of BFPE International, a fire safety and security company, to install a gas valve to the fire suppression system behind the stove. In addition, the wooden kitchen cabinets in the kitchen in building 2 were being taken off the wall and were being replaced with new prefabricated cabinets. Many of the new cabinets were sitting on the floor.
• There were numerous items of canned foods in the cabinets and frozen meats in the freezer at the time of the inspection.
• There was a door knob missing on the exterior of building 2.
• A large pot of beef stew was cooking on the stove in building 1 as supper for the residents in building 2. The stove in building 1 was operational.
• The cleaning supplies were located in the cleaning supply cabinet in building 2. At the beginning of the inspection, the cabinet was locked. It was subsequently unlocked by Linda Nichols at the direction of Gina Anderson and remained unlocked under Ms. Anderson's supervision.
• During the inspection, Gina Anderson talked with the representatives of law enforcement, Health and Human Services and Social Services. She told them that the license was being suspended and that all the clients had to be removed by midnight on February 15, 2002. Ms. Anderson wrote out a short suspension memorandum. There was no reason stated in the memo why the license was being suspended. No inspection report was prepared on the date of the inspection, nor was one made a part of the record.
• As a result of the suspension, all the clients were removed from the facility. Their Medication Administrative Records were taken either by the clients, by representatives of the Department of Social Services or the Department of Health and Human Services, or by Gina Anderson.
• On the date of the inspection, Edward Yashinsky, Ms. Anderson's team leader, knew of the renovation taking place in the kitchen in building 2.
• The only person who made a determination that the residents at the facility on the date of the inspection were in imminent danger was Gina Anderson. There was no evidence any other person came to such a conclusion. Ms. Anderson came to this conclusion notwithstanding the fact that she interviewed the residents and none of them reported any abuse or neglect.
• From her observations at the facility on February 15, 2002, Ellen Young made no determination that any resident of the facility was in immediate danger.
• From her observations at the facility on February 15, 2002 and her conversations with the residents, Sandra Enzor found no threat to them, nor did she find that they had been abused or suffered any harm.
• From his observations at the facility on February 15, 2002 and his conversations with residents there, Ray Singleton noticed no problems with the facility other than some disarray in the kitchen. His clients were upset when told they had to leave the facility.
• The only resident who made any complaint about the facility was Ms. Young's client, who complained that she had not received her medications or breakfast on the morning of February 14, 2002. However, according to Ms. Nichols, this resident, who is 84 years old, received her insulin shot at 8:00 a.m. on the morning of February 14. Furthermore, the resident is in the habit of waking up as late as 11:00 a.m. Although the normal time for serving breakfast at the facility is 7:00 a.m., the staff serves breakfast to this particular resident after she wakes up. On the morning of February 14, the resident was served breakfast after Ms. Young arrived at the facility around 10:30 a.m. Moreover, there is some evidence that this resident suffers from a moderate short term memory loss.
• The Horry County Police Department issued no charges against the Respondent as a result of its inspection of the facility.
• The Department's witnesses testified that they followed the procedures set forth in the Division of Health Licensing Operations Manual in issuing the immediate suspension.

CONCLUSIONS OF LAW AND DISCUSSION

Based upon the foregoing testimony and Findings of Fact, I conclude as a matter of law the following:

• The Administrative Law Judge Division has subject matter jurisdiction in this action pursuant to S.C. Code Ann. §§ 1-23-310 et seq. (Supp. 2001). Further, the Administrative Law Judge who tries a contested case is the finder of fact and issues a Final Decision and Order pursuant to the provisions of S.C. Code Ann. §§ 1-23-350 and 1-23-600(B)(Supp.2001). Brown v. S.C. Dep't of Health & Envtl. Control, 348 S.C. 507, 560 S.E. 2d 410, 417 (2002).
• The standard of proof in weighing the evidence and making a decision on the merits at a contested case hearing is the preponderance of the evidence. See Anonymous v. State Bd. of Medical Examiners, 329 S.C. 371, 796 S.E.2d 17 (1998) (standard of proof in an administrative proceeding is the preponderance of evidence).

• The Department imposed a penalty against the Respondent for violating S.C. Code Ann. Regs. 61-84. Basic principles of administrative law establish that an agency bears the burden of proof in establishing that the penalty is justified. See Peabody Coal Co. v. Talston, 578 N.E.2d 751 (Ind. Ct. App. 1991); Shipley, South Carolina Administrative Law § 5-79, 5-80 (1989).
• The State Certification of Need and Health Facility Licensure Act, S.C. Code Ann. §§ 44-7-110 et seq., governs the licensure of community residential care facilities in South Carolina. Pursuant to S.C. Code Ann. § 44-7-320(A)(1) (Supp. 2001), the Department may deny, suspend or revoke a license or invoke a monetary penalty against a person or facility for:

(a) violating a provision of [the Act] or departmental regulations;

(c) conduct or practices detrimental to the health or safety of patients, residents, clients, or employees of a facility or service. . . .

5. If the Department decides to assess a penalty, deny, suspend, or revoke a license, "it shall send to the appropriate person or facility. . . a notice setting forth the particular reasons for the determination. The determination becomes final thirty days after the mailing of the notice, unless the person or facility . . . requests in writing a contested case hearing . . . pursuant to the Administrative Procedures Act." S.C. Code Ann. § 44-7-320(B) (Supp. 2001). This section makes no mention of an immediate suspension. Instead, the provisions for an immediate suspension are contained in Section 44-7-320(A)(3):

If in the department's judgment conditions or practices exist in a facility that pose an immediate threat to the health, safety, and welfare of the residents, the department immediately may suspend the facility's license and shall contact the appropriate agencies for placement of the residents. Within five days of the suspension a preliminary hearing must be held to determine if the immediate threatening conditions or practices continue to exist. If they do not, the license must be immediately reinstated. Whether the license is reinstated or suspension remains due to the immediate threatening conditions or practices, the department may proceed with the process for permanent revocation pursuant to this section [§44-7-320(B)]. (Emphasis added).

Thus, the statute sets forth two separate procedures for suspending a facility's license-one procedure for immediate suspensions in the event of an emergency situation, which requires an expedited preliminary hearing; and the other for suspensions or revocations not arising from emergency situations, which requires resolution through the contested case process before the suspension or revocation can become effective.

6. In addition, S.C. Code Ann. Regs. 61-84, entitled Standards for Licensing Community Residential Care Facilities, provides definitions, license and compliance requirements, enforcement sections, and other governing provisions for community residential care facilities in South Carolina. However, the regulation makes no mention of immediate license suspensions. Accordingly, the only procedure authorizing the Department to immediately suspend the license of a community residential care facility is that contained in Section 44-7-320(A)(3).

7. In this case, the Department apparently determined that conditions and practices at the facility existed at the facility on February 15, 2002 which posed an immediate threat to the health, safety and welfare of the residents. Regardless of whether the action taken by the Department was called an "immediate suspension" by Department officials, the Department effectively closed the facility when its on-site inspector verbally communicated to other agency and local law enforcement representatives that the residents at the facility had to be removed no later than midnight on the day of the inspection. Therefore, the Department was required to follow the procedures of Section 44-7-320(A)(3). The Department took the initial steps under this procedure by delivering the one page suspension letter-which contained no enumeration of the violations allegedly committed by the Respondent or of the reasons for the immediate suspension--and by contacting the appropriate agencies for placement of the residents. The Department failed, however, to provide the Respondent a preliminary hearing within five days of the suspension, as the statute mandates. Instead, the Department elected to proceed under Section 44-7-320(B) by sending the Respondent a certified letter on February 25, 2002, which states that the Department substantiated five violations of Regs. 61-84 as a result of the unannounced inspection on February 15, 2002. The letter was received by Respondent on February 26, 2002, some 11 days after the suspension was effective. In the letter, the Department affirmed its suspension of the license, imposed a monetary penalty in the amount of $5,700.00, and notified Respondent that if it wished to challenge the action by the Department, it must request a contested case hearing within thirty (30) days of the date of the letter.

8. At the hearing, the Department took the position that it could lawfully issue an immediate suspension of Respondent's license without providing a preliminary hearing, whether or not an immediately threatening situation occurred. Witnesses for the Department stated that, pursuant to written "policy" which was followed in this case, the Department is not required to provide a preliminary hearing. Upon request by the court for a copy of the policy, the Department provided a copy of Pages 139-172, as contained in the Department's Division of Health Licensing Operations Manual ("Manual"), printed in July 1997, to the court and to the Respondent on September 6, 2002. The Court has carefully reviewed the Manual provided by the Department. The Manual contains two relevant sections--Section 1006, entitled "Suspending, Revoking, Denying a License" is addressed on pages 154-155, and Chapter 11 of the Manual is entitled "Emergencies and Imminent Danger." However, at no place in the Manual is there is any reference to the preliminary hearing provision contained in §44-7-320(A)(3). It is apparent from a review of these sections that the Manual simply ignores the provisions of S.C. Code Ann. § 44-7-320(A)(3) by making no reference whatsoever to the licensee's right to a preliminary hearing. As a result, when the Department follows the procedures set forth in the Manual, a licensee is denied its statutory right to the preliminary hearing under (A)(3) when the Department determines that there is an immediate threat to the health, safety and well-being of clients served at the facility. Instead, the Department takes the position that it can immediately suspend the license, but the licensee only has the right to a contested case hearing, as authorized under (B) for any violation of (A)(1). This position is unsupported by the law.

9. Administrative agencies, such as the Department, are creatures of statute and their power is dependent upon statute, so that they must find within the statute warrant for the exercise of any authority which they claim. Mungo v. Smith, 289 S.C. 560, 347 S.E.2d 514 (Ct. App. 1986); Calhoun Life Ins. Co. v. Gambrell, 245 S.C. 406, 140 S.E.2d 774 (1965). Any reasonable doubt of the existence in an agency of any particular power should ordinarily be resolved against the exercise of the power. Id. Furthermore, an administrative agency cannot make a rule which would materially alter or add to the law, but to be valid, a rule must only implement the law. Banks v. Batesburg Hauling Co., 202 S.C. 273, 24 S.E.2d 496 (1943). I find and conclude that to the extent the Department's policy allows the Department to issue an immediate suspension of a residential care facility's license without affording the licensee the opportunity for a preliminary hearing, that policy is in violation of S.C. Code Ann. § 44-7-320(A)(3) and is beyond the scope of the Department's authority.

10. Moreover, the Department's construction of Section 44-7-320 is not entitled to any deference. Although in general an agency's construction of a statute which it administers is given deference by the courts, this rule only applies in cases where the statute is ambiguous. Where a statute is clear and unambiguous, such as is the case with Section 44-7-320, the rule does not apply. Davidson v. Eastern Fire & Cas. Ins. Co., 245 S.C. 472, 141 S.E.2d 135 (1965). In addition, an administrative construction of a statute which results in a patently erroneous application of the statute is entitled to no deference. Monroe v. Livingston, 251 S.C. 214, 161 S.E.2d 243 (1968). As discussed above, the Department's construction of Section 44-7-320 contradicts the clear language of the statute. Accordingly, the immediate suspension of Respondent's license is invalid and a violation of Respondent's procedural due process rights. Respondent has been forced to maintain its facility without any income from the clients housed there since February 15, 2002 as a result of the Department's actions. Furthermore, Respondent has been forced to seek relief through the contested case hearing process, which was designed for non-emergency situations and which is much more lengthy than the preliminary hearing process.

11. I further conclude that the Department failed to prove by a preponderance of the evidence that Respondent's license should be suspended or that fines should be imposed. None of the allegations contained in the Department's letter of February 25, 2002, except for the missing doorknob in Building 2, were supported by the testimony at the hearing. As to:

(1) failure to provide breakfast or medications to a resident on the morning of February 14, 2002, no one was at the facility to witness such inaction by employees of Respondent nor were there any records which reflected that the client did not receive her breakfast and her medications. In fact, the testimony of Ms. Nichols, which was uncontroverted, was that she had provided medications to the client, and that the client's breakfast was delayed because of the client's habit of waking up late. Any interview with a client, who was well up in age and who was subject to some short-term memory difficulties, would be inadmissible as hearsay evidence.

(2) a stove being inoperable in the first building and unapproved construction underway in the second building, as well as there being no food in the first building and little to no food in the second building, there was introduced at the hearing, without objection, photographs of many items of food in the cabinets and freezers at the facility. Further, Ms. Nichols testified that Respondent had catered lunch for the clients that day from locations off site and would have done so for the dinner meal if necessary. Ms. Nichols' testimony about the food was uncontroverted and the Department's witness, who was the team member who conducted the investigation, was not called to rebut the testimony. Moreover, none of the residents interviewed during the inspection complained about not having any food. As to the stove being inoperable in Building 1, the evidence is overwhelming that the stove was operable in the first building and a pot of food was being cooked on it during the time of the inspection. As to the construction in building 2, it consisted of some wall cabinets being nailed on the wall to replace some that had been taken off the wall. To require such minor construction to have blueprints and be subject to architectural review, as testified by employees of the Department, would be absurd and a waste of Respondent's resources. Further, such requirements would only drive up the costs of operating a facility at a time when those costs are already extremely high and many of the costs are being paid for by state agencies who place clients in these facilities. Finally, there was no showing that the residents were harmed in any way by this construction. Accordingly, none of these allegations was supported by the evidence or warranted the immediate suspension of Respondent's license.

(3) as to a doorknob missing, flooring in disrepair and the stove inoperable in the second building, Respondent admitted consistently that the doorknob was missing on the date of the inspection. As to the floor, the pictures admitted into evidence showed that the old tile was being replaced with new tile and that the tile had not been cut in around the outside wall areas at the time of the inspection. However, the floor was on schedule to be completed. As to the stove in Building 2, it was not operable because it had been unplugged while a contractor, who was working before the inspection and who completed the job after the inspection, was installing equipment behind the stove. The billing statement from the contractor, which indicates that the work was completed on February 15, supports Ms. Nichols' testimony in this regard. Finally, there was absolutely no evidence that any of the residents were harmed in any way by the missing doorknob or the disarray in the kitchen in Building 2. I find and conclude that none of these allegations, except for the allegation concerning the missing doorknob, was supported by the evidence. I further find that none of these allegations warranted the immediate suspension of Respondent's license.

(4) as to "a doctor's statement" being "observed that a resident who was insulin dependent was not receiving insulin," Ms. Nichols testified that she had taken this patient to the doctor because the patient was refusing to take her medicine. The purpose of the doctor's appointment was to get the doctor to tell the patient she needed to take her insulin. The doctor's letter simply recited the fact that the client was refusing to take her medicine and indicated an effort on the part of Respondent to get the doctor to convince her that she needed to take her medicine. There is nothing whatsoever in the statement which indicates that Respondent had failed to give the resident her insulin or which otherwise supports the Department's allegation. I therefore find that this allegation was not supported by the evidence and was not a sufficient ground to support the suspension of Respondent's license.

(5) as to the allegation that "harmful agents(cleaning supplies) were accessible to residents in the laundry room of building two," the testimony of Ms. Nichols was that the laundry room was locked and she unlocked it at the direction of the Department's inspector, Gina P. Anderson, to allow Ms. Anderson to obtain some bags for clients to use to pack their belongings. Thereafter, Ms. Nichols was ordered away from the laundry room and it was no longer under her control. Her testimony was uncontroverted. I therefore find that this allegation was not supported by the evidence and did not warrant the immediate suspension of Respondent's license.

Neither the representative of the Department of Social Services (Adult Protective Services) nor the representatives of the Department of Health and Human Services noted any signs of abuse by the Respondent or its employees at the time of the inspection. They observed no neglect and their clients did not want to leave. However, they were told they had to remove their clients by midnight of the date of the inspection. Furthermore, the Horry County Police Department did not bring any charges against the Respondent as a result of the inspection. There was simply no evidence that the residents of Respondent's facility were in immediate danger. The suspension of Respondent's license since February 15, 2002 by the Department was unwarranted and it has created a hardship on both Respondent and the various state agencies who have referred their clients to this facility and would have continued to do so but for the Department's action.

12. I conclude that the Department abused its discretion and acted outside the scope of its statutory authority in closing the facility and in failing to provide a preliminary hearing within five days of the suspension. I further conclude that the evidence does not support the Department's decision to close the facility or to impose monetary sanctions. Accordingly, the Department must restore the license to the Respondent immediately.

ORDER

For all the foregoing reasons, it is hereby:

ORDERED that the Department's determination to suspend the Respondent's license and to impose a $5,700 fine is hereby vacated; and it is further

ORDERED that the Department shall immediately restore the license to Respondent upon receipt of this Order.

AND IT IS SO ORDERED.

_______________________________

MARVIN F. KITTRELL

Chief Administrative Law Judge

November 15, 2002

Columbia, South Carolina

1. A copy of this Manual was provided to the court after the hearing.