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:
Sobhi A. Girgis, M.D. vs. SCDLLR

AGENCY:
South Carolina Department of Labor, Licensing and Regulation

PARTIES:
Petitioners:
Sobhi A. Girgis, M.D.

Respondents:
South Carolina Department of Labor, Licensing and Regulation, State Board of Medical Examiners
 
DOCKET NUMBER:
99-ALJ-11-0223-IJ

APPEARANCES:
David B. Summer, Jr., Esquire, and Faye A. Flowers, Esquire,
for Petitioner

Richard W. Simmons, II, Esquire, and Wendy B. Harvey, Esquire,
for Respondent
 

ORDERS:

ORDER

This matter is before the Administrative Law Judge Division ("Division") pursuant to the Motion of the Petitioner, Sobhi A. Girgis, M.D., for a Rule to Show Cause requiring the Respondent, South Carolina Department of Labor, Licensing and Regulation, State Board of Medical Examiners ("Board"), to show why it should not be held in contempt for its failure to comply with the May 13, 1999, Order of this Court requiring that it immediately reinstate the Petitioner's medical license pending the resolution of any further disciplinary proceedings against the Petitioner. A hearing on the Motion was held on June 2, 1999, at the offices of the Administrative Law Judge Division, Columbia, South Carolina.



STATEMENT OF THE CASE

This case has a lengthy procedural history. In 1989, an initial complaint was filed against the Petitioner. The Board investigated the allegations of the complaint and issued its formal complaint against the Petitioner in September 1993. Following a hearing conducted before a hearing panel appointed by the Executive Director of the Board, the full Board issued a final order on July 25, 1994, in which it found that Petitioner had violated certain provisions of the statutes and regulations applicable to physicians, and revoked his license. Thereafter, Petitioner appealed the Board's decision to the Division. On February 7, 1995, I issued a Final Decision and Order which reversed the decision of the Board and remanded the case to the Board for rehearing. The Order further held that the Board had committed due process violations against Petitioner by failing to give him adequate notice of the charges against him and by failing to provide him with a copy of the initial complaint.

On appeal, the circuit court reversed the Division's Order of February 7, 1995 and reinstated the decision of the Board. Petitioner then appealed to the South Carolina Court of Appeals, which issued a decision on June 23, 1998. The Court of Appeals held that Petitioner had received adequate notice of the charges against him, but that the Board committed error in refusing to provide Petitioner a copy of the initial complaint. The Court reversed the Board's decision to revoke Petitioner's license and remanded the case to the Board "to provide Dr. Girgis with a copy of the initial complaint." S.C. Dep't of Labor, Licensing and Regulation v. Girgis, 332 S.C. 162, 503 S.E.2d 490, 494 (Ct. App. 1998). The Board then filed a Petition for Rehearing before the Court of Appeals, which was denied. The Board's subsequent Petition for Writ of Certiorari to the South Carolina Supreme Court was likewise denied in April of 1999.

Following the Supreme Court's action, counsel for Petitioner wrote the Board demanding both a copy of the initial complaint against the Petitioner and immediate reinstatement of Petitioner's license to practice medicine. The Board initially refused to produce a copy of the initial complaint on the grounds that subsequently passed regulations prohibited such release. As to the issue of reinstatement, the Board advised Petitioner's counsel that in order for Petitioner's license to be reinstated, Petitioner would have to appear before the Board to request reinstatement and to allow the Board to determine any conditions or restrictions to be placed on Petitioner's license. Petitioner then filed a request for injunctive relief with the Division, asking that the Board be ordered to produce a copy of the initial complaint and to immediately reinstate Petitioner's license to practice medicine in accordance with the Court of Appeals' opinion. Following the filing of Petitioner's request for injunctive relief before the Division, the Board provided a copy of the initial complaint, and served Petitioner's counsel with a Notice of Hearing, setting Petitioner's appearance before the Board for May 18, 1999, pursuant to the Court of Appeals' remand of the case.

A hearing on Petitioner's request for injunctive relief was held before me on May 11, 1999. Since the Board had provided a copy of the initial complaint to the Petitioner prior to the hearing, I found that issue to be moot and addressed only the issue of the reinstatement of Petitioner's medical license. On May 13, 1999, this Court issued an Order which held that, pursuant to the opinion of the Court of Appeals, the Board's Order revoking Petitioner's medical license had been reversed, thus returning the Petitioner to the status he occupied prior to the issuance of the Board's Order--that of a licensed physician awaiting disciplinary proceedings. Accordingly, I ordered the Board to reinstate the Petitioner's license immediately and without conditions, pending the prompt resolution of the disciplinary proceedings, which were then scheduled for hearing on May 18, 1999.

Subsequent to the issuance of the Order of May 13, 1999, the parties attempted to work out a resolution of the matter under which the Petitioner's license would be reinstated. The parties differ as to the finality of the agreement reached. However, it is undisputed that, as a result of the negotiations between the parties, the hearing before the Board which was scheduled for May 18, 1999, was cancelled, and it was the understanding of Petitioner's counsel, pursuant to indications from the Board's counsel and Executive Director, that the issuance of Petitioner's license was forthcoming. It was not until May 28, 1999, that counsel for the Board informed Petitioner's counsel that the Board had decided not to approve the agreement between the parties and that no license would be issued. On that same day, Petitioner's counsel indicated his intent to file a Motion for Rule to Show Cause why the Board should not be held in contempt for failing to obey the Order of May 13, 1999. After a final attempt to reach a resolution of this matter failed, Petitioner's counsel filed the present Motion for Rule to Show Cause on June 1, 1999.



DISCUSSION AND CONCLUSIONS

Jurisdiction

The Respondent first contends that this Division is without jurisdiction to enforce the Order of May 13, 1999, because it filed an appeal of that Order with the Court of Common Pleas for Richland County, South Carolina on June 1, 1999. However, this contention is without merit. As stated in the Order of May 13, this Division has jurisdiction to review "[a]ny action of the board relating to the granting, refusal or cancellation of a license, or any other official action of the board relating to a license or licensee hereunder. . . as provided under Article 5 of Chapter 23 of Title 1. . . ." S.C. Code Ann. § 40-47-170 (Supp.1998). Therefore, this matter is governed by the Administrative Procedures Act, which provides that the filing of a petition for judicial review to circuit court "does not itself stay the enforcement of the agency decision." S.C. Code Ann. § 1-23-380(A)(2) (Supp. 1998). The Administrative Law Judge Division is an "agency" within the meaning of the Administrative Procedures Act. S.C. Code Ann. § 1-23-310(2) (Supp. 1998). Accordingly, there is no automatic stay of the May 13 Order, and despite the Board's appeal to the circuit court, this tribunal retains jurisdiction to enforce its own Orders until such enforcement is stayed by order of the circuit court. See S.C. Code Ann. § 1-23-630 (Supp. 1998) (each judge of the Administrative Law Judge Division has the same power at chambers or in open hearing as do circuit court judges). Further, "[o]rders. . . must be promptly complied with, absent a stay, because appeal is the remedy for a decision believed to be erroneous." Sanders, Neese, and Nichols, Trial Handbook for South Carolina Lawyers § 5:6 (1994), citing McLean v. Central States, 762 F.2d 1204 (4th Cir. 1985). "A court order which is not void for lack of jurisdiction must be obeyed until vacated or modified by competent authority, even though erroneous." Id., citing State v. Highsmith, 105 S.C. 505, 90 S.E. 154 (1916).



Contempt

Having determined that this Division has the jurisdiction to enforce the Order of May 13, the question is then whether the Board is in contempt of that Order. The power of contempt exists to maintain the order and decorum of court proceedings, to enforce the court's writs and orders, and to punish acts tending to obstruct the due administration of justice. State v. Kennerly, 331 S.C. 442, 503 S.E.2d 214 (Ct. App. 1998). Willful disobedience of an order is such interference with the administration of justice as to constitute contempt. See Pirkle v. Pirkle, 303 S.C. 266, 399 S.E.2d 797 (Ct. App. 1990); Long v. McMillan, 226 S.C. 598, 86 S.E.2d 477 (1955).

In Poston v. Poston, 331 S.C. 106, 502 S.E.2d 86 (1988), the South Carolina Supreme Court explained the difference between civil and criminal contempt:

The major factor in determining whether a contempt is civil or criminal is the purpose for which the power is exercised, including the nature of the relief and the purpose for which the sentence is imposed. (Citations omitted). The purpose of civil contempt is "to coerce the defendant to do the thing required by the order for the benefit of the complainant." (Citation omitted). The primary purposes of criminal contempt are to preserve the court's authority and to punish for disobedience of its orders. (Citation omitted).



Civil contempt must be proven by clear and convincing evidence, while in a criminal contempt proceeding, the burden of proof is beyond a reasonable doubt. Id.

The evidence presented at the hearing indicates that, after receiving this Court's Order of May 13, 1999, which required the Board to reinstate Petitioner's license immediately and without conditions, counsel for both parties and the Board's Executive Director attempted to work out a resolution of this matter whereby Petitioner's license would be reinstated. Although there is some question as to the finality of the agreement, the negotiations between the parties progressed to such an extent that the hearing before the Board in this case, which would have resolved all outstanding issues, was cancelled. Petitioner's counsel stated to this Court that, from May 13, 1999 until May 28, 1999, the Executive Director and the Board's counsel repeatedly represented that Petitioner's license was being reinstated pursuant to the agreement between the parties and that the issuance of the license was forthcoming. Despite these assurances, the President of the Board apparently decided on May 28, 1999, not to honor the agreement and not to comply with the Order of this Court, but instead chose to file an appeal of that Order.

Furthermore, although the full Board held its regular quarterly meeting on May 17-19, 1999, it was never apprised of the existence of the May 13 Order, and as of the date of this hearing has not yet been told of the May 13 Order, per the sworn testimony of Aaron Kozloski, the Board's Executive Director. Mr.Kozloski, who is an attorney and licensed to practice law in South Carolina, testified that he did inform Dr. Hartwell Hildebrand, the President of the Board, of the Order, but that he is not certain of the exact date and time that the conversation took place, or even whether the conversation took place before or after the regularly scheduled Board meeting. Mr. Kozloski further testified that he "felt no responsibility" to apprise the Board of the existence of the Order, because briefings concerning pending litigation normally occur at regularly scheduled Board meetings and are conducted by counsel for the Board. However, the Board's counsel apparently did not conduct such a briefing at the May 17-19 meeting. Instead, Mr. Kozloski discussed the May 13 Order and the proposed settlement between the parties with Dr. Hildebrand, and Dr. Hildebrand, after apparently giving some initial indications that the settlement was appropriate, changed his mind and decided not to comply with this Court's directive, but instead to pursue an appeal.

The evidence further indicates that, under normal circumstances, the Executive Director has the authority to issue a temporary license to an applicant who has met the criteria for licensure. A temporary license number is issued pending the next regularly scheduled quarterly meeting of the Board. At that meeting, the Board members then each sign the permanent certificate. Upon revocation of a medical license, the licensee is not required to surrender his certificate to the Board. However, the license number of that person is listed as revoked in the records of the Board and on the national registry. Thereafter, that number cannot be issued to any other applicant, but it can be reinstated as to the original license holder. In this case, the Executive Director testified that Petitioner's license number is listed as "revoked" in the Board's records and on the national registry. When asked what authority the Board was relying upon to maintain that Petitioner's license was still revoked, the Executive Director cited the original order of the Board issued in August of 1994, which has been reversed by the South Carolina Court of Appeals. As stated in the Order of May 13, the effect of a reversal is to vacate the judgment and to leave the case standing as if no judgment had been rendered. Moore v. North American Van Lines, 319 S.C. 446, 462 S.E.2d 275 (1995). Therefore, there is no valid order of the Board in existence which can authorize the continued revocation of Petitioner's license. The Board simply cannot legally withhold reinstatement of Petitioner's license under these circumstances. "The right of a person to engage in a lawful profession, trade, or occupation of choice is clearly protected by both the Constitution of the United States and the Constitution of the State of South Carolina. The State cannot abridge this right except as a reasonable exercise of its police powers when it is clearly found that abridgement is necessary for the preservation of the health, safety, and welfare of the public." S.C. Code Ann. § 40-1-10(A) (Supp. 1998). No such finding has been made in this case, as the Board's Order revoking Petitioner's license was reversed by the Court of Appeals. Nonetheless, the Executive Director and the President of the Board continue to refuse to reinstate the Petitioner's license, in blatant disregard of the Order of May 13, 1999.



In view of the total and willful disregard by the Board's Executive Director and President of my Order of May 13, 1999, their failure even now to apprise the other Board members of the provisions of the May 13 Order, and the disregard by the President of the Board of my Order of June 1, 1999, to appear at the hearing on the Rule to Show Cause on June 2, 1999, as indicated by the clear and convincing evidence in the record of this case, I find and conclude that the Executive Director and the President of the Board are in contempt of the Order of May 13, 1999. Although I further find that the evidence in this case rises to the level of criminal contempt, I decline to impose criminal contempt sanctions at this time. Finally, I find and conclude that the Petitioner is entitled to reasonable attorney's fees incurred in the prosecution of this contempt action. See Poston v. Poston, supra (in a civil contempt proceeding, the contemnor may be required to reimburse a complainant for the costs he incurred in enforcing the court's prior order, including reasonable attorney's fees).



ORDER



For all the foregoing reasons, it is hereby ORDERED that:



1. The Board and its Executive Director shall, within twenty-four hours of the date of this Order, reinstate the Petitioner's license to practice without conditions, and shall immediately amend the national registry to delete any reference to the revocation of Petitioner's license.

2. If the Petitioner's license is not reinstated and the national registry amended in accordance with this Order, the Executive Director of the Board, Aaron Kozloski, and the President of the Board, Hartwell Z. Hildebrand, M.D., shall each pay a fine of Five Hundred Dollars ($500.00) to this Court for each successive day they refuse to comply with this Order.

3. The Petitioner is entitled to an award of reasonable attorney's fees, the amount of which shall be determined by the Court upon receipt of an affidavit from Petitioner's counsel







detailing the time spent in the prosecution of this action since the issuance of the Supreme Court's

Order denying certiorari, and the amount of fees incurred.

AND IT IS SO ORDERED.







____________________________________

Marvin F. Kittrell

Chief Judge



Columbia, South Carolina

June 2, 1999


Brown Bldg.

 

 

 

 

 

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