South Carolina              
Administrative Law Court
Edgar A. Brown building 1205 Pendleton St., Suite 224 Columbia, SC 29201 Voice: (803) 734-0550

SC Administrative Law Court Decisions

CAPTION:
William D. Enfinger, P.L.S. vs. SCDLLR

AGENCY:
South Carolina Department of Labor, Licensing and Regulation

PARTIES:
Petitioners:
William D. Enfinger, P.L.S., d/b/a Enfinger & Associates, P.A., PLS #4667

Respondents:
South Carolina Department of Labor, Licensing and Regulation, State Board of Registration for Professional Engineers and Land Surveyors
 
DOCKET NUMBER:
98-ALJ-11-0242-IJ

APPEARANCES:
n/a
 

ORDERS:

ORDER

This matter comes before me upon a Petition for Stay of Hearing and Order for Discovery filed by Petitioner William D. Enfinger. This is a disciplinary action by the South Carolina Department of Labor, Licensing and Regulation, State Board of Registration for Professional Engineers and Land Surveyors ("the Board") against Petitioner, a licensed surveyor. Petitioner seeks a stay of the April 28, 1998 contested case hearing before the Board and an order compelling the Board to respond to Petitioner's prehearing discovery requests. Specifically, Petitioner seeks disclosure and production of the Board's investigative file and the deposition of the Board's Chief Investigator and other witnesses. The Board has offered to provide copies of those documents the Board intends to introduce into evidence, but refuses to produce the investigative file or allow depositions. The Board has also denied Petitioner's request for a continuance of the hearing.

PETITION FOR ORDER FOR DISCOVERY

The jurisdiction of an Administrative Law Judge over decisions of the Board is appellate jurisdiction. In exercising appellate jurisdiction, an Administrative Law Judge may hear appeals of interlocutory orders where "review of the final agency decision would not provide an adequate remedy." S.C. Code Ann. § 1-23-380(a) (Supp. 1997). Since the party seeking jurisdiction has the burden of proving that jurisdiction, Petitioner must demonstrate how the review of the final agency decision will be an inadequate remedy. Yarborough and Co. v. Schoolfield Furniture Industries, Inc. 275 S.C. 151, 268 S.E.2d 42 (1980).

Petitioner asserts that a party in an administrative proceeding is entitled as a matter of right to prehearing discovery under the Administrative Procedures Act ("APA"). The power to order the exchange of evidence prior to or at a contested hearing is vested in the hearing tribunal under the APA. See David E. Shipley, South Carolina Administrative Law 5-58 (2d Ed., S.C. Bar 1989). Section 1-23-320(d) provides: "The agency hearing a contested case may issue in the name of the agency subpoenas for the attendance and testimony of witnesses and the production and examination of books, papers, and records on its own behalf or, upon request, on behalf of any other party to the case."

Depositions are specifically addressed in § 1-23-320(c) which provides: "Any party to such proceedings may cause to be taken the depositions of witnesses within or without the State and either by commission or de bene esse." "Commission" refers to "[a]n authority or writ issuing from a court, in relation to a cause before it, directing and authorizing a person or persons named to do some act or exercise some special function; usually to take the depositions of witnesses." Black's Law Dictionary 272 (6th ed. 1990). Depositions by commission must be authorized by the agency conducting the contested case hearing and are discretionary. A deposition taken de bene esse may have some discovery value, but it is not technically a discovery deposition. It is instead a conditional examination of a witness, the transcript of which is to be submitted at trial in lieu of the witness's live testimony.

The discovery provisions of § 1-23-320(c) and (d) are not mandatory, but rather, discretionary. The Board has the authority to order discovery in contested cases; however, the refusal to order the kind of discovery requested by Petitioner is not error unless the Board's action is arbitrary, capricious, or an abuse of discretion. "It is well-settled that 'the scope and conduct of discovery are within the sound discretion of the trial court . . . and that after [the] . . . final agency order, review is confined to determining if that discretion has been abused. . . .'" Palmetto Alliance, Inc. v. South Carolina Pub. Service Comm'n, 282 S.C. 430, 436, 319 S.E.2d 695, 698 (1984)[quoting Marroquin-Manriquez v. I.N.S., 699 F.2d 129 (3d Cir. 1983)].

An exercise of discretion by an administrative agency will not be disturbed unless there is an abuse of discretion evidenced by a showing that the action of the agency was arbitrary or unlawful. 73A C.J.S. Public Administrative Law and Procedure § 223a (1983). "[A] reviewing court has the duty to examine the procedural methods employed at an administrative hearing to ensure that a fair and impartial procedure was used." Ross v. Medical Univ. of South Carolina, 317 S.C. 377, 381, 453 S.E.2d 880, 883 (S.C. 1994) (quoting 2 Am.Jur.2d Administrative Law § 611).

Generally, a determination of whether a party is prejudiced by an order denying discovery is best determined in light of subsequent developments at trial. Lowndes Products, Inc. v. Bower, 262 S.C. 431, 205 S.E.2d 184 (1979). Petitioner is not prevented from having a fair hearing before the Board given the fact that he will have a right to appellate review of the Board's final decision.

While contested case litigants are entitled to fundamental due process considerations, there is no blanket constitutional right to pre-hearing discovery in administrative cases. See 2 Am.Jur.2d Administrative Law § 327 (1994). The APA does, however, statutorily empower administrative tribunals to require discovery by order or to allow parties to independently conduct discovery under the auspices of an agency rule or regulation. The Board has not promulgated or adopted any specific regulatory provisions addressing discovery. In the absence of an applicable agency rule or regulation permitting discovery in a contested case, parties may engage in discovery only to the extent allowed under the APA and required by constitutional due process standards.

Prehearing discovery is a useful tool which allows a party to review the evidence expected to be presented by an opposing party and to intelligently prepare for the contested case hearing. It prevents "trial by ambush" and assists the parties and hearing tribunal in concentrating on the relevant, contested issues at the hearing. Although the Board could have authorized the depositions of the its witnesses and produced its investigative file pursuant to Petitioner's request, the Board's denial of the request was not, in and of itself, an abuse of its discretion. It is not the role of this Court to substitute its judgment for that of the Board, unless the Board's decision is affected by error of law or clearly erroneous. State ex rel. Medlock v. South Carolina Coastal Council, 289 S.C. 445, 346 S.E.2d 716 (1986). Although "any party to a contested proceeding may depose witnesses in accordance with the provisions which apply in civil actions," the South Carolina Supreme Court has upheld an administrative board's refusal to allow a deposition, finding that the rights of the party requesting the deposition "were not substantially prejudiced" by the denial of the request. Ross v. Medical Univ. of S. Carolina, ___ S.C. ___, 492 S.E.2d 62, 69 (1997).

Appellate review of the Board's final decision provides an adequate remedy for Petitioner. If, upon conclusion of the Board's contested case and issuance of its decision, Petitioner is able to demonstrate that his rights to due process were violated by the lack of discovery, the Administrative Law Judge can take corrective action. S.C. Code Ann. § 1-23-380(A)(6) (Supp. 1997). Accordingly, this tribunal lacks subject matter jurisdiction to order the Board to permit discovery.

PETITION FOR STAY OF HEARING

Petitioner asserts that a stay of the hearing, which is currently scheduled for April 28, 1998, is necessary to allow him sufficient time to prepare a defense. Petitioner also asserts that he did not receive the thirty days notice required by S.C. Code Ann. § 1-23-320(a) (Supp. 1997), which provides, inter alia: "In a contested case, all parties must be afforded an opportunity for hearing after notice of not less than thirty days ... "

The Board sent the Notice of Hearing and Complaint to Petitioner on March 27, 1998 by certified mail. Petitioner received the Notice on March 30, 1998, less than thirty days prior to the currently scheduled hearing. Petitioner filed with the Board a written request for a continuance of the hearing, but the Board denied this request.

Although the Board mailed the Notice of Hearing more than thirty days prior to the hearing, § 1-23-320(a) does not speak to the act of serving this document, but specifically requires the affected parties to have at least thirty days notice of the hearing. (emphasis added).

"Notice" is not defined in section 1-23-320 or any other provision of the APA, therefore this tribunal must construe the term in light of the general purpose of the statute and apply the definition that most nearly accomplishes that purpose. See 58 Am.Jur.2d Notice § 5 (1989); see also Scholtec v. Estate of Reeves, 327 S.C. 551, 490 S.E.2d 603, 606 (Ct. App. 1997) ("The primary rule of statutory construction is to ascertain and give effect to the legislature's intention or purpose as expressed in the statute."). Subsection (e) of the same statute provides that opportunity shall be afforded all parties to respond and present evidence and argument on all issues involved in a contest

case hearing. This subsection reveals the legislative purpose of allowing parties a fair and impartial forum in which they are given a meaningful opportunity to respond to the issues in a case.

Construing "notice" as used in subsection (a) of the statute as actual receipt of the Board's written notification of a hearing is consistent with the purpose of the statute. It is noteworthy that ALJD Rule 3(C) and Rule 6(e), SCRCP both provide that whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after service of a notice, and the notice is served upon him by mail, five days shall be added to the prescribed period. This allows the affected party sufficient time after actual receipt of a notice to take action.

Because Petitioner was given less than thirty days notice of the April 28, 1997 hearing, Petitioner may not have a meaningful opportunity to respond and present evidence on the issues involved in this case if the April 28 hearing is not stayed. I find that under these circumstances, appellate review of the Board's final decision would not provide Petitioner an adequate remedy for the Board's refusal to continue the hearing. Therefore, this tribunal has jurisdiction to review and correct the Board's denial of Petitioner's request for a continuance. Petitioner's request for a stay of the April 28, 1998 hearing is hereby granted. The commencement of the contested case hearing is continued until such time as the Board gives appropriate notice of a new hearing date pursuant to the requirements of S.C. Code Ann. § 1-23-320(a).





ORDER

IT IS THEREFORE ORDERED that the Petition for Order for Discovery is denied.

IT IS FURTHER ORDERED that the Petition for Stay of the April 28, 1998 hearing is granted.

IT IS FURTHER ORDERED that this matter is remanded to the Board for rescheduling of the contested case hearing.

AND IT IS SO ORDERED.

__________________________________

STEPHEN P. BATES

ADMINISTRATIVE LAW JUDGE

April 24, 1998

Columbia, South Carolina


















Brown Bldg.

 

 

 

 

 

Copyright © 2024 South Carolina Administrative Law Court