ORDERS:
ORDER
I. STATEMENT OF THE CASE
This matter comes before the Administrative Law Judge Division upon the Petitioner's Motion for a Temporary Injunction
and Restraining Order Under Rules65(a) and 65(b), SCRCP. A hearing before the Board of Nursing is scheduled for June
9, 2000. The Petitioner seeks to enjoin and restrain the Board of Nursing from holding a hearing in this matter until the
depositions of two of the Respondents' witnesses may be taken and Petitioner's attorneys have a reasonable time thereafter
to prepare for the hearing.
II. FACTUAL BACKGROUND
The Complaint in this matter is dated March 24, 2000 and was received by the Petitioner by certified mail on March 28,
2000. The Complaint contained a Notice of Hearing to be held on April 26, 2000. Julian Sellers, Esquire, was retained by
the Petitioner on April 6, 2000. On April 10, 2000 Mr. Sellers requested a continuance from Phillip Lenski, Esquire,
attorney for the Respondents. On April 14, 2000 the Board granted the continuance request and scheduled the hearing for
June 9, 2000. Mr. Sellers attempted to schedule the depositions of both the Respondents' witnesses, but he was informed by
Mr. Lenski that the Board did not allow depositions of witnesses who were available to testify. The Board also informed
Mr. Lenski that he did not have the authority to issue subpoenas or depose the Board's witnesses. The Petitioner filed its
Notice of Motion and Motion for a Temporary Injunction and Restraining Order on May 25, 2000. Argument was heard on
the Motion at the South Carolina Administrative Law Judge Division on June 1, 2000.
DISCUSSION
The Petitioner has a right under the Administrative Procedures Act to take the deposition of the Respondents' two
witnesses. S.C. Code Ann. § 1-23-320(c) provides that "[a]ny party to [the contested case] proceedings may cause to be
taken the depositions within or without the State . . ." The Supreme Court of South Carolina has held that "[u]nder the
APA, any party to a contested proceeding may depose witnesses in accordance with the provisions which apply in civil
actions." Ross v. Medical University of South Carolina, 328 S.C. 51, 64, 492 S.E.2d 62, 69 (1997).
Moreover, due process requires that the Petitioner be afforded a meaningful opportunity to confront and cross-examine the
witnesses against him. See Zaman v. State Board of Medical Examiners, 305 S.C. 281, 408 S.E.2d 213 (1991) (when the
State seeks to revoke a professional license, procedural due process must be met); S.C. Dept. Of Labor, Licensing &
Regulation v. Girgis, 332 S.C. 162, 503 S.E.2d 490 (Ct. App. 1998) (the fundamental requirement of due process is the
opportunity to be heard at a meaningful time and in a meaningful manner); Huellmantel v. Greenville Hospital Systems, 303
S.C. 549, 402 S.E.2d 489 (Ct. App. 1991) (the miminum elements f due process include the right to confront and cross-examine witnesses). The Nursing Practice Act, S.C. Code Ann. § 40-33-936 (1976), provides in pertinent part: "No part of
this article shall be construed as prohibiting the respondent or his legal counsel from exercising the respondent's
constitutional right of due process under the law, nor to prohibit the respondent from normal access to the charges and
evidence filed against him as part of due process under the law" (emphasis added). The Rules of Procedure for the
Administrative Law Judge Division, effective May 5, 1997, govern all proceedings before the A.L.J. Division. ALJD Rule 1,
Stono River EPA v. S.C. Dept. Of Health and Env. Control, 305 S.C. 90, 406 S.E.2d 340 (1991); League of Women Voters
v. Litchfield-by-the-Sea, 305 S.C. 424, 406 S.E.2d 378 (1991). ALJD Rule 21 provides that discovery in all cases before the
ALJD shall be conducted in accordance with SCRCP Rule 26-37.
In cases before the ALJD, the only limitations on the broad discovery provisions in the Rules of Civil Procedure are that only
standard interrogatories are permitted; only three depositions per party are allowed; and no more than ten requests to admit
are allowed. Absent alterations to these rules by the Administrative Law Judge, upon notice and good cause shown, those
limitations on the scope of discovery will be enforced. Under the facts of this case, due process requires that Petitioner be
granted the full rights of discovery provided by ALJD Rule 21.
ORDER
For all the foregoing reasons, the Petitioner's Motion for a Temporary Injunction and Restraining Order is GRANTED.
It is also ORDERED that the hearing in this matter be continued for at least sixty (60) days from June 9, 2000.
It is also ORDERED that the Petitioner be able to depose Keith Hipp and Robert Folk within thirty (30) days from the date
of this Order.
It is also ORDERED that the Petitioner be allowed full discovery as allowed under ALJD Rule 21.
AND IT IS SO ORDERED.
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CAROLYN C. MATTHEWS
Administrative Law Judge
June 2, 2000
Columbia, South Carolina
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