SC Administrative Law Court Decisions

DHEC based its suspension of Respondent's EMT license upon S.C. Code Ann. § 44-61-70(c) (Supp. 1997), which provides that the Director of DHEC may immediately suspend or revoke an EMT license upon determining that "a clear and present danger would exist to the public health, safety or welfare if the license, authorization, permit or certification were not immediately suspended or revoked." Respondent argues that DHEC's suspension of his license violated due process because he was not afforded a hearing pursuant to S.C. Code Ann. § 1-23-370(c) (1986). That section provides:

No revocation, suspension, annulment, or withdrawal of any license is lawful unless, prior to the institution of agency proceedings, the agency gave notice by mail to the licensee of facts or conduct which warrant the intended action, and the licensee was given an opportunity to show compliance with all lawful requirements for the retention of the license. If the agency finds that the public health, safety or welfare imperatively requires emergency action, and incorporates a finding to that effect in its order, summary suspension of a license may be ordered pending proceedings for revocation or other action. These proceedings shall be promptly instituted and determined.

(Emphasis added).

I agree with the Respondent that S.C. Code Ann. § 1-23-370(c) is applicable in this case. By its own broad terms, it applies to the revocation or suspension of any license administered by an "agency." "Agency" is defined in S.C. Code Ann. § 1-23-310(1) as "each state board, commission, department or officer, other than the legislature or the courts, but to include the Administrative Law Judge Division, authorized by law to determine contested cases." The term "agency", therefore, would certainly encompass the DHEC Board and the Commissioner in this instance. Accordingly, § 1-23-370(c) and § 44-61-70(a) must be read together to determine the proper procedure for summary suspension of an EMT license. Neither section requires a hearing prior to the summary suspension. The Commissioner need only make a determination that the public health, safety, or welfare requires emergency action. However, although the emergency suspension may take place without a prior hearing, § 1-23-370(c) requires that the licensee then be afforded a "prompt" hearing on the "proceedings for revocation or other action." Although the Commissioner's letter of suspension did not advise the Respondent of his right to a hearing pursuant to § 1-23-370(c), the Respondent did contest the suspension by sending a letter to the Commissioner. DHEC treated this letter as a request for a hearing, and transmitted the request to the Division. By doing so, DHEC did

comply with the requirements of § 1-23-370(c). Since the Division now hears all contested cases formerly heard by DHEC hearing officers, see S.C. Code Ann. § 1-23-600(B) (Supp. 1997), the due process hearing required by § 1-23-370(c) must be conducted by the Division. Since the Respondent has been afforded an opportunity to contest his summary suspension at a hearing before the Division, I conclude that his due process rights have not been violated in this instance. See Everett v. Georgia Bd. of Dentistry, 264 Ga. 14, 441 S.E.2d 66 (1994) (due process did not require a hearing prior to a summary suspension of a dentist's license, where the Board of Dentistry made a finding that the public health, safety or welfare required emergency action, and where disciplinary proceedings were promptly instituted); State ex rel. Perry v. Miller, 171 W.Va. 509, 300 S.E.2d 622 (1983) (where an administrative agency is given the power to license in an area directly impacting the health and safety of members of the public, the agency possesses the power to temporarily suspend the license without a presuspension hearing when the suspension is necessary for health or safety reasons). However, in order to fully comply with § 1-23-370(c), DHEC must either promptly reinstate Respondent's license or institute any permanent disciplinary action it deems necessary, upon the completion of the criminal proceedings against Respondent.

The question thus remains whether the Respondent's indictment for Criminal Sexual Conduct, Second Degree, constitutes sufficient evidence upon which to base a finding that the public health, safety or welfare would be threatened if the Respondent's license were not immediately suspended pending the outcome of the criminal proceedings against him. DHEC contends that Respondent's indictment constitutes a sufficient ground for immediate suspension of Respondent's EMT license. Respondent, on the other hand, argues that, pursuant to S.C. Code Ann. Regs. 61-7, Section X (Supp. 1997), an indictment is not "misconduct" which constitutes grounds for revocation or suspension of an EMT license.

While Regs. 61-7, Section X (B)(2) provides that "misconduct"justifying the revocation or suspension of an EMT license may be found when the holder of a license "is convicted of a felony or any other crime involving moral turpitude, drugs, or gross immorality," (emphasis added), I do not believe that, in making a finding of "a clear and present danger to the public health, safety, or welfare" as the basis for a summary suspension, either the DHEC Commissioner or this Court is necessarily limited to a consideration of whether the conduct forming the basis for the emergency action falls within the grounds enumerated in the regulation. A showing of a threat to the public health, safety or welfare is an independent ground for summary suspension of an EMT license, regardless of whether the conduct complained of is specifically listed as a ground for suspension or revocation in the statute. See S.C. Real Estate Comm'n v. Boineau, 27 S.C. 574, 230 S.E.2d 440 (1976) (a showing of dishonesty is a ground for revocation of a real estate broker's license, regardless of whether there is a statute specifically so providing). Moreover, the interest of the State in protecting the public health, safety, and welfare is paramount and justifies summary administrative action. Hodel v. Virginia Surface Mining and Reclamation Ass'n, 452 U.S. 264 (1981).

Even if a summary suspension could only be predicated upon conduct falling within the parameters of Regs. 61-7, the conduct complained of in Respondent's indictment certainly constitutes an "action or omission. . . [which] contributed to or furthered the injury or illness of a patient under his care." Regs. 61-7, Section X(B)(10). Therefore, I find that Respondent's actual conviction of a crime is not a necessary predicate to the summary suspension of his license.

Finally, I conclude that the indictment, standing alone, is a sufficient basis upon which to make a finding that the public health, safety, or welfare would be threatened if Respondent's license were not immediately suspended. An indictment by a grand jury only results when, after an investigation, the grand jury concludes that there is probable cause to believe that a crime has been committed. See 38A C.J.S. Grand Juries § 2 (1996); Phillips v. Graham, 86 Ill. 2d 274, 427 N.E.2d 550, 56 Ill. Dec. 355 (1981). Therefore, the charges against the Respondent rise above the level of "simple rumor or innuendo." Phillips, supra, at 554-55. Moreover, the alleged crime in this case was committed against a patient under Respondent's care, during the performance of his functions as an EMT. Under these circumstances, the DHEC Commissioner was justified in summarily suspending Respondent's EMT license. See Everett, supra (emergency suspension of a dentist's license was upheld, where the suspension was based upon an arrest warrant for sexual offenses committed against children, and the crimes allegedly took place at the dentist's office).

For all the foregoing reasons, I conclude that the Respondent's EMT license was properly suspended by the DHEC Commissioner pending the resolution of the criminal charges against the Respondent. It is therefore

ORDERED that Respondent's EMT certificate, #17744, remain suspended pending the outcome of the criminal case.

IT IS FURTHER ORDERED that the docket number of this case be changed to accurately reflect the nature of these proceedings, and that the caption of this case be changed to reflect the correct spelling of the Respondent's name.

AND IT IS SO ORDERED.

___________________________________

Marvin F. Kittrell

Chief Judge

Columbia, South Carolina

September 25, 1998