South Carolina              
Administrative Law Court
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SC Administrative Law Court Decisions

CAPTION:
SCDHEC vs. Albert Hickson

AGENCY:
South Carolina Department of Health and Environmental Control

PARTIES:
Petitioner:
South Carolina Department of Health and Environmental Control

Respondent:
Albert Hickson, Licensee, Residential Care Home
 
DOCKET NUMBER:
98-ALJ-07-0590-CC

APPEARANCES:
For the Department: Josephine Bell Patton, Esquire

For the Respondent: William T. Toal, Esquire
 

ORDERS:

FINAL ORDER AND DECISION

STATEMENT OF THE CASE

This matter came before the Administrative Law Judge Division (ALJD or Division) for a contested case hearing as a result of the South Carolina Department of Health and Environmental Control's (Department) issuance of a Five Thousand One Hundred ($5,100) Dollar civil monetary penalty and revocation of the Respondent's license to operate Hickson's Residential Care Home. The Department imposed the penalty for repeat violations of Sections 203(C) and 2002 of 25A S.C. Code Ann. Regs. 61-84 (Supp. 1998), entitled Standards for Licensing Community Residential Care Facilities. The revocation of the Respondent's license was imposed for violation of Sections 202 and 203(A)(1) of Regulation 61-84. A Hearing was held before me on September 7, 1999, at the Administrative Law Judge Division.

AGREEMENT OF THE PARTIES

Prior to hearing this case, the parties announced they had reached an agreement regarding the Department's revocation of the Respondent's license to operate a community residential care facility. The parties stipulated that the Respondent had repeatedly violated 25A S.C. Code Ann. Regs. 61-84, §§ 203(C) and 2002 (Supp. 1998). The parties agreed that the Respondent violated Sections 202 and 203(A)(1) under Regulation 61-84. The parties also agreed that the Respondent could continue to operate as a community residential care facility so long as the facility retains and maintains the services of a licensed administrator who meets the requirements of the S.C. Board of Long Term Health Care Administrators. The parties further agreed that the Respondent shall provide the Department with a copy of all contracts entered into between the Respondent and a licensed administrator(s) for services provided to the facility within ten (10) days of finalizing such contracts.

The parties agreed that if the Respondent, at any time while operating a licensed community residential care facility, fails to employ the required services of a licensed administrator for a consecutive period of thirty (30) days, the Respondent shall immediately notify the Department in writing and relocate all residents to approved facilities and/or appropriate placement with relatives. The Respondent shall provide in writing to the Department when and where (the specific addresses and telephone numbers) each resident was relocated. The parties further agreed that if the Respondent is required to relocate residents due to its failure to maintain the services of a licensed administrator, the Respondent shall not admit or readmit any residents until such time as it has secured the services of a licensed administrator.

By entering into the above-stated agreement, the parties further agree that such agreement does not waive the Department's authority to enforce, by imposing penalties or otherwise, all statutory and regulatory requirements applicable to the licensure of Hickson Residential Care Home.

ISSUE PRESENTED

The parties, having agreed to resolve the revocation action and having stipulated to the repeat violations of Sections 203 (C) and 2002 of 25A S.C. Code Ann. Regs. 61-84 (Supp. 1998), the only remaining issue for this Court to decide is whether the proposed penalty of Five Thousand One Hundred ($5,100) Dollars is justified.

BURDEN OF PROOF

The Department, through its penalty letter, assessed the Respondent monetary penalties for repeat violations of its regulations. Basic principles of administrative law establish that an agency bears the burden of proof in establishing that the penalty amount 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, is amended to reflect the correct allocation of the burden of proof.

FINDINGS OF FACT

Having carefully considered all testimony, exhibits and arguments presented at the hearing of this matter, and taking into account the credibility and accuracy of the evidence, I make the following findings of fact by a preponderance of evidence:

1. Notice of the date, time, place, and nature of the hearing was timely given to the parties.

2. The Respondent admitted to the violations cited by the Department.

3. The Respondent, Albert Hickson, licensee of Hickson Residential Care Home, owns, operates, and is responsible for assuring that the facility complies with all State laws and regulations pertaining to the operation of a community residential care facility.

4. The Respondent has a history of noncompliance with the Department's regulations pertaining to the employment of a licensed facility administrator and has been cited on three occasions for violating 25A S.C. Code Ann. Regs. 61-84, § 203(C) (Supp. 1998). Specifically, he has been cited for continued failure to correct various fire and safety violations.

5. 25A S.C. Code Ann. Regs. 61-84, § 103(D) (Supp. 1998) provides a schedule to be used as a guide by the Department to determine the dollar amount of a monetary penalty. The schedule provides for incremental increases in the amount of the penalty based upon the frequency of the violation.

6. The Department did not assess any penalties for the first, second, or third previous violations of Reg. 61-84. However, since this was the Respondent's fourth repeat violation, the Department assessed the maximum amount of Five Thousand ($5,000) Dollars as provided for under Reg. 61-84, § 103(D) with an additional One Hundred ($100) Dollars for its continued failure to correct various fire and safety violations.

CONCLUSIONS OF LAW

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

1. S.C. Code Ann. § 1-23-600 (B) (Supp. 1998) authorizes the South Carolina Administrative Law Judge Division to hear contested cases, as defined in S.C. Code Ann. § 1-23-310 (Supp 1998), involving the departments of the executive branch of government in which a single hearing officer is authorized or permitted by law or regulation to hear and decide such cases.

2. The standard of proof in weighing the evidence and making a decision on the merits at a contested case hearing is a preponderance of the evidence. National Health Corp. v. S.C. Department of Health and Environmental Control, 298 S.C. 373, 380 S.E. 2d 841(Ct. App. 1989).

3. Pursuant to S.C. Code Ann. §§ 44-7-110 to -370 (Supp. 1998), the Department is authorized to enforce the basic standard of licensure and operation of community residential care facilities.

4. S.C. Code Ann. § 44-7-320 (Supp. 1998) provides that a residential care facility license may be denied, suspended, or revoked, or a monetary penalty assessed, for violations of law or the Department's regulations.

5. The Department may assess fines against residential care facility licensees who violate the governing regulations in accordance with the guidelines provided in 25A S.C. Code Ann. Regs. 61-84, § 103. Section 103 sets forth that the "schedule will be used as a guide to determine the dollar amount" of the fine to be levied. Therefore, the Five Thousand One Hundred ($5,100) Dollar assessed penalty against the Respondent may be modified or set aside pursuant to S.C. Code Ann. § 44-7-320 (B) (Supp. 1998). The Respondent has committed numerous violations of the governing regulations. However, since progressive fines were not levied for the Respondent's previous violations, I find that it is appropriate to levy a reduced fine in this instance.

ORDER

Based upon the above Findings of Fact and Conclusions of Law, it is hereby:

ORDERED that the Respondent retains and maintains the services of a licensed administrator and upon failure to do so for a consecutive period of thirty (30) days, the Respondent shall immediately notify the Department in writing and relocate all residents to other licensed facilities or appropriate placement with relatives, providing in writing to the Department when and where (the specific addresses and telephone numbers) each resident was relocated.

IT IS FURTHER ORDERED that the Respondent provide the Department with a copy of any and all contracts for the services of a licensed administrator within ten (10) days of entering into such a contract.

IT IS FURTHER ORDERED that the fine assessed against Hickson Residential Care Home by the Department is modified from Five Thousand ($5,000) Dollars to One Thousand Five Hundred ($1,500) Dollars for violation of 25A S.C. Code Ann. Regs. 61-84, § 203(C) and the assessment of One Hundred ($100) Dollars for violation of 25A S.C. Code Ann. Regs. 61-84, §2002 is affirmed. Therefore, the Respondent shall pay One Thousand Six Hundred ($1,600) Dollars to the Department as a total penalty amount for the above violations within thirty (30) days of the date of this Order.

IT IS FURTHER ORDERED that neither the provisions of the parties' agreement nor this Order constitute a waiver of the Department's authority to enforce, by imposing penalties or otherwise, all statutory and regulatory requirements applicable to the licensure of Hickson Residential Care Home for subsequent violations.

IT IS FURTHER ORDERED that the caption of this case is hereby amended to reflect the Department as the Petitioner in this action.

AND IT IS SO ORDERED





____________________________

Ralph King Anderson, III

Administrative Law Judge





February 17, 2000

Columbia, South Carolina


Brown Bldg.

 

 

 

 

 

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