South Carolina              
Administrative Law Court
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SC Administrative Law Court Decisions

CAPTION:
Anonymous Dentist vs. SCDLLR

AGENCY:
South Carolina Department of Labor, Licensing and Regulation

PARTIES:
Petitioners:
Anonymous Dentist

Respondents:
South Carolina Department of Labor, Licensing and Regulation, State Board of Dentistry
 
DOCKET NUMBER:
99-ALJ-11-0206-IJ

APPEARANCES:
Richard A. Harpootlian, Esquire, for Petitioner

Patrick D. Hanks, Esquire, for Respondent
 

ORDERS:

FINAL ORDER AND DECISION

This matter came before the Administrative Law Judge Division ("Division") upon the Respondent’s Motion to Compel the deposition of Investigator James Evans and for a stay until such deposition is completed. The Petitioner is a party in a contested case before the State Board of Dentistry of South Carolina ("Board") involving the Petitioner’s dental license.

A hearing on the contested case was scheduled before the Board for May 8, 1999. The Petitioner issued a Subpoena for Deposition for James Evans, the investigator for the South Carolina Board of Dentistry, pursuant to the Administrative Procedures Act. On April 22, 1999, Patrick D. Hanks, counsel for the South Carolina Department of Labor, Licensing and Regulation, served a Motion to Quash the Deposition and Subpoena. On April 23, 1999, without any notice provided to the Petitioner, Lewis E. Shephard, Jr., DDS, President of the Board, issued an Order granting the Motion to Quash Subpoena. Thereafter, Petitioner filed a request for injunctive relief with the Division. A hearing on Petitioner’s Motion was held at the offices of the Division in Columbia, South Carolina, on April 29, 1999.

Pursuant to the Administrative Procedures Act, a person to whom a subpoena has been issued may move before the Administrative Law Judge for an Order quashing or modifying the subpoena. See S.C. Code § 1-23-320 (Supp. 1998). Moreover, the Division is given the authority, upon application of any party to a contested case proceeding, to enforce by proper proceedings the attendance and testimony of witnesses and the production and examination of books, papers, and records. Id. Thus, the Administrative Procedures Act vests the Administrative Law Judge Division with the power to quash depositions and subpoenas or compel attendance of witnesses pursuant to deposition notices or subpoenas.

Nothing in the statutes governing the Board grants the President of the Board or any other member of the Board the authority to quash a subpoena or notice of deposition under the Administrative Procedures Act. The Administrative Law Judge Division has the exclusive power under the APA to issue such orders. The President of the Board acted outside the scope of his authority by issuing an order quashing the subpoena. Accordingly, the Order quashing the subpoena of Investigator Evans is void.

Furthermore, the Petitioner has a right under the Administrative Procedures Act to take the deposition of Investigator Evans. 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 of witnesses within or without the State. . . ." The Supreme Court of South Carolina has also 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. S.C. State Bd. 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 and 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 Hosp. Systems, 303 S.C. 549, 402 S.E.2d 489 (Ct. App. 1991) (the minimum elements of due process include the right to confront and cross-examine witnesses). I therefore conclude that the deposition of Investigator Evans must be allowed to proceed.

ORDER

For all the foregoing reasons, the Order Granting Motion to Quash Subpoena issued by the President of the South Carolina Board of Dentistry on April 23, 1999 is hereby vacated. The Court further orders that Investigator Evans be compelled to attend his deposition pursuant to subpoena and notice on behalf of the Petitioner. The Petitioner shall issue a new notice and subpoena within thirty (30) days of the date of this Order.

IT IS FURTHER ORDERED that this matter is stayed for thirty (30) days from the date of this Order so that the parties may have the opportunity to depose witnesses pursuant to this Order. IT IS FURTHER ORDERED that the Board shall be allowed to subpoena the depositions of the Respondent and John Douglas pursuant to this Order.

AND IT IS SO ORDERED.

 

_______________________________

Marvin F. Kittrell

Chief Judge

 

Columbia, South Carolina

May 5, 1999


Brown Bldg.

 

 

 

 

 

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