ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This case emanates from a determination by the Licensing Division of the Department of
Health and Environmental Control (Department) to enforce the payment of a suspended
monetary penalty in the amount of $3,500.00 and to impose a new monetary penalty of
$5,000.00 for violations of 25A S.C. Code Ann. Regs. 61-84 § 103(A)(Supp. 2002), the
Standards for Licensing Community Residential Care Facilities, and S.C. Code Ann. Section 44-7-260 (2002). A contested case hearing was held at the offices of the Administrative Law Judge
Division (Division) on October 28, 2003. At the hearing, the parties informed me that the
Petitioner, Martha Banks, agreed to accept the Department’s findings and determinations
regarding the violations and no longer contested the monetary penalties imposed by the
Department. The parties also enter into a Stipulation of Facts and an Agreement which I hereby
adopt and incorporate into this Order. Based on this Stipulation and Agreement, I make the
following Findings of Fact.
FINDINGS OF FACT
Martha Banks operated an unlicensed community residential care facility at 117 Acorn
Drive, Greer, South Carolina in violation of 25A S.C. Code Ann. Regs. 61-84 §§ 101(L),
101(TT), and 103(A). Afterwards, the Department requested a contested case hearing before the
Administrative Law Judge Division but subsequently settled the case by entering into a Consent
Order and Agreement in Docket No. 00-ALJ-07-0240-CC. The Consent Order suspended
$3,500.00 of the penalty sought by the Department but also set forth that should the Department
find her operating an unlicensed community residential care facility in the future, the
Department could require payment of all or part of the suspended penalty.
After entering into the Consent Order and Agreement, the Petitioner continued operating
an unlicensed community residential care facility at 117 Acorn Drive at all times the Department
visited this location. As a result of that violation, the Department imposed a $5,000.00 penalty
and sought the imposition of all of the $3,500.00 it suspended as part of the agreement to
resolve Docket No. 00-ALJ-07-0240-CC. The Respondent conceded that the $5,000.00 penalty
is proper. She also stipulated that the $3,500.00 penalty is proper and due to the Department.
CONCLUSIONS OF LAW
Based upon the above Findings of Fact, I conclude the following as a matter of law:
1.The Department is the state agency charged with the licensing and inspection of
community residential care facilities as defined by 25A S.C. Code Ann. Regs. 61-84 §101(E)
(Supp. 2002). The Division has subject matter jurisdiction over contested cases arising from
enforcement disputes between the Department and community residential care facilities. S.C.
Code Ann. §§ 1-23-310 et seq. (1986 & Supp. 2002) and S.C. Code Ann. § 44-7-320(B) (2002).
2.The standard of proof in an administrative hearing, absent an allegation of fraud
or a statute imposing a higher burden, is a preponderance of the evidence. Anonymous v. State
Bd. of Med. Exam’rs, 329 S.C. 371, 496 S.E.2d 17 (1998).
3.Community Residential Care Facilities are licensed by the Department pursuant
to S.C. Code Ann. § 44-7-260 (2002). Regulation 61-84 § 101(L) defines a community
residential care facility as:
[a] facility which offers room and board and which, unlike a boarding house,
provides/coordinates a degree of personal care for a period of time in excess of
twenty-four consecutive hours for two or more persons, eighteen years old or
older, not related to the licensee within the third degree of consanguinity. It is
designed to accommodate residents’ changing needs and preferences, maximize
resident’s dignity, autonomy, privacy, independence, and safety, and encourage
family and community involvement. Included in this definition is any facility
(other than a hospital), which offers or represents to the public that it offers a
beneficial or protected environment specifically for individuals who have mental
illness or disabilities. These facilities may be referred to as “assisted living”
provided they meet the above definition of community residential care facility.
Section 101(TT) defines “related/relative” as follows. “This degree of kinship is
considered ‘within the third degree of consanguinity,’ e.g., a spouse, son,
daughter, sister, brother, parent, aunt, uncle, niece, nephew, grandparent, great-grandparent, grandchild, or great-grandchild.”
Operation of a facility which offers room and board and provides or coordinates a degree of
personal care for a period of time in excess of twenty-four consecutive hours for two or more
persons, eighteen years old or older, not related to the operator within the third degree of
consanguinity, is a violation of Section 44-7-260 and Regulation 61-84 § 103(A).
4.The evidence supports the conclusion that Martha Banks violated the terms of her
Consent Order and Agreement by operating and continuing to operate an unlicensed community
residential care facility at 117 Acorn Drive. S.C. Code Ann. § 44-7-320(A)(1)(2002) provides
that the “department may deny, suspend, or revoke licenses or assess a monetary penalty against
a person or facility for:
(a) violating a provision of this article or departmental regulations.”
Furthermore, the Division has the authority to adjudicate the issue of whether the Department’s
imposition of the monetary penalty is proper. S.C. Code Ann. §§ 1-23-310 to -390 (1986 &
Supp. 2002); S.C. Code Ann. §1-23-600(B) (1986 & Supp. 2002); S.C. Code Ann. § 44-7-320(B) (2002 ).
5.Inherent in and fundamental to the powers of an Administrative Law Judge, as the
trier of fact in contested cases under the Administrative Procedures Act, is the authority to
decide the appropriate sanction when such is disputed. Walker v. South Carolina ABC Comm'n,
305 S.C. 209, 407 S.E. 2d 633 (1991). In particular, in assessing a penalty, “each fine must be
analyzed individually to determine if it is appropriate under the circumstances.” Midlands
Utility, Inc., v. South Carolina Department of Health and Environmental Control, 313 S.C. 210,
212, 437 S.E.2d 120, 121 (1993). Furthermore, the fact-finder “should give effect to the major
purpose of a civil penalty-deterrence.” Id. However, there appears to be no dispute concerning
the appropriateness of the penalties levied in this case. Therefore, I find that the $3,500.00
monetary penalty and the $5,000.00 monetary penalty are proper in this case.
ORDER
Based upon the above Findings of Fact and Conclusions of Law, it is hereby:
ORDERED that Martha Banks submit the monetary penalty amounts of $3,500.00 and
$5,000.00 to the Licensing Division of the Department of Health and Environmental Control for
the above violations within ten days from the date of this Final Order and Decision.
AND IT IS SO ORDERED.
Ralph King Anderson, III
Administrative Law Judge
November 17, 2003
Columbia, South Carolina |
