SC Administrative Law Court Decisions

STATEMENT OF THE CASE

This matter is before the Administrative Law Judge Division pursuant to the appeal of John Wynne from a decision of the Foster Care Hearing Committee of the South Carolina Department of Social Services ("DSS"). DSS denied Appellant's application for a foster home license on the ground that S.C. Code Ann. § 20-7-1642 (Supp. 1997) prohibits issuance of the license due to Appellant's 1974 conviction for contributing to the delinquency of a minor. A hearing was conducted on November 16, 1998 at the Administrative Law Judge Division in Columbia, South Carolina, at which time the parties presented oral arguments. For the reasons stated herein, the decision of the Foster Care Hearing Committee is affirmed.

Appellant submitted a foster home license application to DSS. During the process of the home study, DSS discovered that Appellant had three 1974 misdemeanor convictions in Florida, one of which was contributing to the delinquency of a minor. DSS notified Appellant by telephone that his application would have to be denied because of this conviction, as DSS was prohibited by statute from placing a child in foster care with a person who has pled guilty to or has been convicted of contributing to the delinquency of a minor. Appellant requested a fair hearing which was conducted on April 27, 1998. At this hearing, the Foster Home Licensing Supervisor in charge of Appellant's case testified that the conviction was the only thing in the study that prevented DSS from approving the issuance of a foster home license to Appellant.⁽¹⁾

After reviewing all testimony and other evidence presented at the hearing, the Foster Care Hearing Committee issued a Final Administrative Decision on June 4, 1998. The Foster Care Hearing Committee determined that DSS properly denied Appellant's application for a foster home license due to his conviction for contributing to the delinquency of a minor. This appeal followed.

ISSUES

1. Did the failure to give Appellant written notice of the denial of his application via registered mail invalidate the administrative proceedings in this case?

2. Did DSS err in denying Appellant's foster home license on the ground that S.C. Code Ann. § 20-7-1642 prohibits the issuance of a license to Appellant?

STANDARD OF REVIEW

In conducting an appellate review of a final administrative decision, the Administrative Law Judge may reverse or modify the decision if

substantial rights of the appellant have been prejudiced because the findings, inferences, conclusions or decisions are:

(a) in violation of constitutional or statutory provisions;

(b) in excess of the statutory authority of the agency;

(c) made upon unlawful procedure;

(d) affected by other error of law;

(e) clearly erroneous in view of the reliable, probative and substantial evidence on the whole record; or

(f) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.

S.C. Code Ann. § 1-23-380(A)(6) and (B) (Supp. 1997). This tribunal, however, may not substitute its judgment for that of the administrative agency as to the weight of the evidence on questions of fact. Id.; see also Lark v. Bi-Lo, Inc., 276 S.C. 130, 276 S.E.2d 304 (1981).

DISCUSSION

Notice

When DSS denies the issuance of a foster home license, it is required to give the applicant written notice, via registered mail, explaining the denial and its basis and informing the applicant of his right to appeal the decision pursuant to established agency procedure. 27 S.C. Code Ann. Regs. 114-550 (N)(2) (1992).

Appellant asserts that he received notice of DSS's original denial by telephone only, and that he was told that he could not appeal the decision.⁽²⁾ Appellant argues that DSS's failure to follow its own regulation invalidated the administrative proceedings as a whole, including the decision of the Foster Care Hearing Committee.

Because Appellant failed to raise this issue during the April 27, 1998 hearing, it is not preserved for appellate review. Talley v. South Carolina Higher Education Tuition Grants, 289 S.C. 483, 347 S.E.2d 99 (1986)(an issue may not be raised for the first time on appeal). In any event, Appellant was not prejudiced by the lack of written notice since Appellant was able to obtain a hearing to review the original denial in a timely fashion. Therefore, DSS's failure to send written notice of the original denial to Appellant does not constitute reversible error. Ross v. Medical University of South Carolina, 328 S.C. 51, 492 S.E.2d 62 (1997).

Conviction

On July 14, 1974, Appellant, who was nineteen years of age at the time, was arrested in Miami, Florida and charged with drunkenness, disorderly conduct and contributing to the delinquency of a minor. Appellant had been working at a summer job on a training ship for the New York State Maritime College. The ship had gone into port in Miami for four days. During this time, Appellant and two other individuals from the ship went to a local bar and became involved in a brawl, for which they were arrested and taken into custody. Appellant did not learn until his court appearance that one of these individuals was only seventeen years of age and had lied about his age, as no person under eighteen years of age was allowed to work on the ship. Appellant chose to plead guilty to the charges against him so that he could return to his ship before it left Miami, rather than wait several days for a trial and lose his job in the process.

DSS is prohibited from placing a child in foster care with a person who has pled guilty or nolo contendere to or who has been convicted of certain criminal offenses. S.C. Code Ann. § 20-7-1642 (Supp. 1997). One of the listed offenses is "contributing to the delinquency of a minor as provided for in Section 16-17-490[.]" S.C. Code Ann. 20-7-1642(2)(c) (Supp. 1997). Section 16-17-490 of the South Carolina Code states in pertinent part:

It shall be unlawful for any person over eighteen years of age to knowingly and wilfully encourage, aid or cause or to do any act which shall cause or influence a minor:

(1) To violate any law or any municipal ordinance;

(2) To become and be incorrigible or ungovernable or habitually disobedient and beyond the control of his or her parent, guardian, custodian or other lawful authority;

(3) To become and be habitually truant;

(4) To without just cause and without the consent of his or her parent, guardian or other custodian, repeatedly desert his or her home or place of abode;

(5) To engage in any occupation which is in violation of law;

(6) To associate with immoral or vicious persons;

(7) To frequent any place the existence of which is in violation of law;

(8) To habitually use obscene or profane language;

(9) To beg or solicit alms in any public places under any pretense;

(10) To so deport himself or herself as to wilfully injure or endanger his or her morals or health or the morals or health of others.

. . .

(emphasis added).

Appellant argues that he should not be denied a foster home license under section 20-7-1642 because his actions which gave rise to the conviction were not knowing and wilful. Respondent argues that Appellant's conviction cannot now be re-tried. While it is true that this tribunal cannot

reopen Appellant's conviction, it is necessary to determine whether the precise charge to which Appellant pled guilty falls within the list of crimes in section 20-7-1642(2).

Administrative notice is taken of the Florida statute under which Appellant was convicted, Fla. Stat. Ann. § 828.19 (1973).⁽³⁾ This is the statute prohibiting contributing to the delinquency of a minor as it existed on the date of Appellant's arrest, July 14, 1974. This statute states in pertinent part:

In all cases where any child shall be a dependent or delinquent child, as defined under the laws of Florida, any person who shall by any act encourage, cause, or contribute to the dependency or delinquency of such child . . . is guilty of a misdemeanor of the first degree.

Fla. Stat. Ann. § 828.19 (1973). "Delinquent child" is defined in Fla. Stat. Ann. § 39.01 (1973) as a child who commits a violation of law, which is also referenced in S.C. Code Ann. § 16-17-490 (1976).

Under both Florida and South Carolina law, if the requirement of guilty knowledge is not explicitly included in the text of a statutory crime, then guilty knowledge is not an element of that crime. See Green v. State, 602 So.2d 1306 (Fla. Dist. Ct. App. 1992); State v. American Agr. Chemical Co., 118 S.C. 333, 110 S.E. 800 (1922) (a statute may forbid the doing of an act, and make its commission a crime, regardless of the intent or knowledge of the doer, and, if such legislative intention appears, the court must give it effect, although the intent of the doer may have been innocent).⁽⁴⁾

The Florida statute did not explicitly require that the prohibited action be knowing and wilful. Therefore, guilty knowledge was not an element of the Florida offense to which Appellant pled guilty. The South Carolina statute, however, is more complex. Under the plain language of section 16-17-490, it is unlawful for an individual to "knowingly and wilfully encourage, aid or cause" a minor to do certain acts. But the plain language of the statute also makes it unlawful for an individual to "do any act which shall cause or influence a minor" to do certain acts:

It shall be unlawful for any person over eighteen years of age to knowingly and wilfully encourage, aid or cause or to do any act which shall cause or influence a minor . . .

(emphasis added).

This tribunal is constrained to ascertain and give effect to the legislature's intention as expressed in the statute. Scholtec v. Estate of Reeves, 327 S.C. 551, 490 S.E.2d 603 (Ct. App. 1997). The language used should be given its plain and ordinary meaning without resort to subtle or forced construction to expand or limit the scope of a statute. See Berkebile v. Outen, 311 S.C. 50, 426 S.E.2d 760 (1993). Under the plain language of section 16-17-490, the key word is "or," which plainly provides for alternative violations, one with the element of guilty knowledge and one without that element.

Based upon the foregoing, I find that the 1974 Florida offense to which Appellant pled guilty is the same offense prohibited by S.C. Code Ann. § 20-7-1642(2)(c) (Supp. 1997). Section 20-7-1642(2)(c) references "contributing to the delinquency of a minor as provided for in Section 16-17-490." While section 16-17-490 requires that the encouragement, aiding or causing of a minor to do certain acts be knowing and wilful, an alternative violation of the statute is "to do any act which shall cause or influence a minor" to do certain acts, which is precisely what is prohibited by the Florida statute under which Appellant pled guilty. Therefore, DSS is prohibited from issuing a foster home license to Appellant under S.C. Code Ann. § 20-7-1642 (Supp. 1997).

From the record, Appellant appears to be an excellent applicant for foster parenthood. It is a shame that a minor youthful indiscretion could have such unexpected and seemingly unjust consequences. If it were a matter of discretion, this tribunal would grant the foster home license to Appellant; however, I am constrained to follow the statutory law of this State.

ORDER

IT IS THEREFORE ORDERED that the decision of the Foster Care Hearing Committee of the Department of Social Services is affirmed.

AND IT IS SO ORDERED.

______________________________

STEPHEN P. BATES

Administrative Law Judge

December 8, 1998

Columbia, South Carolina

1. Appellant and Respondent also stipulated to this fact at the November 16, 1998 appeal hearing before the Administrative Law Judge Division.

2. While the possibility that a DSS employee could have made such a statement is disturbing, the record contained no supporting evidence of such a statement.

3. See Masters v. Rodgers Dev. Group, 283 S.C. 251, 321 S.E.2d 194 (Ct. App. 1984) (judicial notice may be taken of a fact where its accuracy may be ascertained by reference to readily available sources of indisputable reliability).

4. See also State v. Medlin, 273 So.2d 394 (Fla. 1973) (where the State denounces the doing of an act as criminal without specifically requiring criminal intent, it is not necessary for the State to prove that the commission of such act was accompanied by criminal intent); State v. Bryant, 316 S.C. 216, 447 S.E.2d 852 (1994) (whether intent is a necessary element of the statutory crime must be determined from the language of the statute construed in light of its purpose and design).