ORDERS:
ORDER
Pursuant to S.C. Code Ann. § 40-15-140, Jimmy Landy Gardner, D.D.S. (“Appellant”), filed
an application dated April 18, 2001 with the South Carolina Department of Labor, Licensing, and
Regulation (“Department”), State Board of Dentistry (“Board”), to be re-licensed as a dentist in
South Carolina. Dr. Gardner paid the application fee, as required by the rules and regulations of the
Board, and satisfactorily passed the examination on subjects and operations pertaining to dentistry,
as prepared by the Board.
On September 7, 2001, the Administrator of the Board wrote to
Appellant, requesting that he appear before the Board at 12:00 noon, Sunday, September 23, 2001
in Columbia, South Carolina “to answer any questions the Board may have regarding your application
for a South Carolina Dental License.” On that date Appellant appeared before the Board. The Board
denied Appellant’s application request and Dr. Charles B. Maxwell, President of the Board, issued
a written Order the same day.
Apparently the question and answer session between the Board and Appellant on September
23, 2001 was perfunctory and no record was made of the proceeding, except for the minutes which
contained one short paragraph consisting of four lines.
The Order issued by the Board, which was
2/3 page in length, noted that the Board had unanimously voted to deny the application, pursuant to
Section 40-1-130 of the 1976 Code of Laws of South Carolina, as amended, “based upon Applicant’s
having committed acts that are grounds for disciplinary action in this State, as evidenced by the Final
Orders of the Board, dated April 28, 1998 (license revoked),
and April 28, 1995 (license suspended,
with conditions),
both of which were based upon serious violations of Section 40-15-190.” Further,
the Board stated in its Order that “the denial of Applicant’s application is based upon Applicant
having committed acts indicating that Applicant does not possess the character and fitness to practice
dentistry, as evidenced by, among other things, the prior acts of professional misconduct reflected
in the Final Orders of the Board mentioned above.” Section 40-15-140 provides that an “applicant
shall produce evidence satisfactory to the Board that he possesses good moral character.”
In the “Order” provision of its Order, the Board denied Appellant’s application for a license
to practice dentistry in this State and ordered that “Applicant shall not be eligible to reapply for
licensure in this State at any time in the future.” (Emphasis added). No provision was made for any
rehabilitation by Appellant, for any reexamination in the future, or for any future hope of obtaining
a dentistry license in South Carolina.
On November 19, 2001, Appellant filed a Notice of Appeal of the Board’s Order with the
Administrative Law Judge Division. The case was assigned to The Honorable Carolyn Matthews,
Administrative Law Judge. Briefs were filed and oral arguments by the parties were made before
Judge Matthews on March 19, 2002. On October 21, 2002 Judge Matthews issued an Order in
which she remanded the case to the Board for a full evidentiary hearing. Pursuant to her Order, the
Board was to consider the entire record and issue a final decision. Further, Judge Matthews vacated
the Board’s Order of October 23, 2001 in her Order.
The Board filed a Motion for Reconsideration with Judge Matthews on October 31, 2002.
After reviewing the briefs filed by both parties, Judge Matthews denied the motion in an Order dated
December 31, 2002.
The Board appealed Judge Matthews’ Order to circuit court. The matter was heard on March
12, 2004 by The Honorable Reginald I. Lloyd, Presiding Judge of the Fifth Judicial Circuit. Judge
Lloyd noted in his Order dated March 30, 2004 that he had issued an earlier order on February 23,
2004 wherein he had ordered that the matter be referred (remanded) back to the Board for a hearing.
At the hearing on March 12, 2004, counsel for the Board advised the judge that 7 of the 9 Board
members who had in fact been on the Board when the Board issued its Order on October 23, 2001
were still on the Board. Counsel for the Board stated that these members were “tainted.” Counsel
noted that the Board now has four new members but such does not constitute a quorum as required
by statute. Ultimately, Judge Lloyd concluded that the Board could not provide a “fair due process
hearing” and remanded the case to the Administrative Law Judge Division for assignment to an
Administrative Law Judge to conduct a full evidentiary hearing on the merits. He ordered the matter
to be set for a hearing within 30 days and an order to be issued within 15 days of the hearing.
S.C. Code Ann. § 1-23-600(D) (Supp. 2003) grants subject matter jurisdiction to the
Administrative Law Judge Division on “all hearings of appeals from final decisions of contested cases
before professional and occupational licensing boards or commissions within the Department of
Labor, Licensing, and Regulation pursuant to Section 1-23-380.” By statute, the Administrative
Law Judge Division does not have jurisdiction to hear this case as a contested case or conduct a full
evidentiary hearing. Contested case jurisdiction over professional licensing matters is mandated by
statute to be heard by the various professional licensing boards under their individual licensing acts.
For example, dentists in South Carolina are regulated by the Board of Dentistry. See S.C. Code Ann.
§ 40-1-70 which describes the powers and duties of regulatory boards, § 40-1-90 which describes
“Disciplinary action proceedings,” and §§ 40-1-120 and 40-1-130 which defines “Sanctions” and
provides authority to the Board to sanction a member of a profession. Section 40-1-160 provides
for appeals from the final action (decision in a contested case hearing) of a board to the
Administrative Law Judge Division.
Accordingly, this court is unable to comply with the Order of Judge Lloyd. However, it is
appropriate that this case be remanded to the Board to conduct a full evidentiary hearing as required
by law. It is incumbent that the Board provide to Appellant his constitutional right to a fair trial on
his request for a license to practice dentistry in this state. This is a basic requirement of due process
and applies to administrative agencies which adjudicate as well as to courts. Ross v. Medical
University of South Carolina, 328 S.C. 51, 492 S.E.2d 62 (1997); Withrow v. Larkin, 421 U.S. 35
(1975). This court, in remanding this case, presumes that each member of the Board who will
adjudicate this matter on remand is honest, fair and unbiased. Such is required. Garris v. Governing
Board of the South Carolina Reinsurance Facility, 333 S.C. 432, 511 S.E.2d 48 (1999). “A hearing
tribunal will not be disqualified unless actual bias, as opposed to a mere potential for bias, is shown.”
Kizer v. Dorchester County Vocational Education Board of Trustees, 287 S.C. 545, 552 (1986).
The Board must allow the parties to present their cases, introduce evidence and must then
consider the entire record in making its decision. If a member of the Board has previously acted in
any investigative process involving Appellant, he must recuse himself from serving on the Board in
the adjudication of this case on remand. See S. C. Constitution Article I, § 22. If a member of the
Board is biased, that is, one who has knowledge of “ex parte” information as a result of a prior
investigation, or such member has developed (by prior involvement in this case) a will to win or has
a fixed and unchangeable preformed opinion, then he must also distance himself from the adjudicatory
process, recuse himself from the Board, and refrain from discussing this matter with the members
who will hear the case.
Further, any legal advisor or staff member who has previously advised members of the Board
in any matter related to Appellant, whether in an investigatory or adjudicatory process, or in any other
level of review, must not participate in this matter on review or any future matter concerning
Appellant since that person may have acquired a “proprietary” attitude, and/or have acquired a “will
to win,” which can bias the members hearing the case.
The members of the Board are reminded that the provisions of the Administrative Procedures
Act control this hearing process. Section 1-23-320 provides that an individual must be provided an
opportunity for a hearing, notice of the hearing, and a short and plain statement of the matters
asserted by the agency. Further, this statutory provision provides for discovery. Under this section
the Administrative Law Judge Division has authority to assist the parties with the enforcement of
such. Also, our Supreme Court has held that “under the Administrative Procedures Act, 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, 492 S.E.2d 62 (1997).
The Board must allow discovery in this case so the facts can be fully developed and a complete record
can be made at the hearing. Also, the members of the Board are reminded that Section 1-23-360
places limitations on “ex parte” communication.
This court makes these comments and suggestions to the Board since this case has already
had a tortured history. Further, this court is aware of the order of the circuit court judge who, based
upon representations by counsel for the Board, made the decision that the Board could not provide
an unbiased hearing nor issue an unbiased decision. However, “due process is flexible and calls for
such procedural protection as the particular situation demands.” Morrissey v. Brewer, 408 U.S. 471,
481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972).
Our General Assembly created these professional boards and provided by statute for the
appointments of those who compose their membership. The individuals selected to serve as members
are distinguished citizens of this state. It is beyond the will of this court to make a determination that
this Board does not have sufficient members who, being trustworthy, honest and without bias, will
distance themselves from the past and listen carefully to the evidence as presented at a hearing and
thereafter make a fair and honest decision based upon the merits.
In seeking to prove that a dentistry license should be issued in this case, Appellant is
asserting the affirmative and thus he bears the burden of proof. Sanders and Nichols, South Carolina
Trial Handbook, § 9.3 (2001). Only when Appellant has met the burden of demonstrating that he has
satisfied the required conditions can the license be granted. 73A C. J. S. Public Administrative Law
and Procedure, § 128 (1983).
This court is hopeful that a full and complete record will be made by the Board and that it
will issue a written decision which contains detailed findings of fact and detailed conclusions of law,
separately stated, all as required by law and statute. S.C. Code Ann. §1-23-350; Kiawah Property
Owners Group vs. Public Serv. Comm’n of South Carolina and Kiawah Island Utility, Inc., 338 S.C.
92, 525 S.E.2d 863, 865 (1999) (citing Porter v. S. C. Public Serv. Comm’n., 333 S.C. 12, 21, 507
S.E.2d 328, 332 (1998). The findings of fact made by the Board must be sufficiently detailed to
enable a reviewing court to determine whether the findings of the Board are supported by the
evidence in the record and whether the law has been properly applied. Parsons v. Georgetown Steel,
318 S.C. 63, 456 S.E.2d 366 (1995); Able Communications, Inc. v. S. C. Public Serv. Comm’n, 290
S.C. 409, 351 S.E.2d 151 (1986).
Accordingly, it is hereby
ORDERED that this court does not have subject matter jurisdiction to hear this case as a
contested case or conduct a full evidentiary hearing; and it is further
ORDERED that this case is remanded to the Board, which must schedule and conduct a full
and complete evidentiary hearing, not sooner than sixty (60) days after the date of this Order nor
more than one hundred and twenty (120) days after the date of this Order; and it is further
ORDERED that no referee, legal advisor or staff member of the Board or of the Department,
previously involved in any matter related to Appellant, shall be involved in this or any future
investigatory or adjudicatory process concerning Appellant to ensure such individual can not fuel any
“proprietary” attitude with or to the Board; and it is further
ORDERED that the parties hereto may engage in written and deposition discovery to ensure
that the case is fully developed for trial before the Board and so a full and complete record can be
made; and it is further
ORDERED that Appellant may conduct voir dire of the members of the Board prior to the
beginning of the hearing to insure that the members are neutral and objective and to ensure that
Appellant will have a just and fair hearing, as required by our Constitution and by due process; and
it is further
ORDERED that if the Board is unable to provide to Appellant a full and complete evidentiary
hearing within the time frames established in this Order by a quorum of Board members who are
unbiased, then upon motion made by Appellant, this court will issue an Order directing the Board to
immediately issue a license to Appellant to practice dentistry in the State of South Carolina. AND IT IS SO ORDERED.
________________________________
Marvin F. Kittrell
Chief Administrative Law Judge
April 15, 2004
Columbia, South Carolina |
