ORDERS:
ORDER
AFFIRMED
________________________
STATEMENT OF THE CASE
This matter is before the undersigned pursuant to the appeal of Michael Antonio: Addison, D. C. ("Appellant"), from the
Order on Remand of the South Carolina Department of Labor, Licensing, and Regulation, State Board of Chiropractic
Examiners ("Respondent" or "Board"), dated October 21, 2000.
Appellant is a chiropractor licensed in South Carolina. He originally filed an appeal with the Administrative Law Judge
Division ("Division" or "ALJD"), requesting review of an order of the Board dated November 20, 1998, which suspended
Appellant's license to practice chiropractics, imposed certain requirements as a condition of relicensure, and assessed a
fine. A hearing on the appeal was held at the offices of the Division on September 27, 1999. The Order of the Board was
vacated by the undersigned and the case was remanded to the Board to conduct a new hearing. Upon remand, the Board
held another hearing on June 29, 2000, and issued its Order on Remand on October 21, 2000, in which the Board found that
Appellant had violated certain statutes and regulations governing the practice of chiropractic, imposed civil penalties and
costs, and placed Appellant's license in a probationary status for one year. Thereafter, Appellant filed an appeal of the
Order on Remand.
The Appellant sets forth in his brief the following issues on appeal:
- Did the Board err when, pursuant to this court's Order of Remand, it chose to reappoint a hearing officer and retry the
matter against appellant?
- Was the hearing examiner in error when he refused to allow an unlicensed individual to act as counsel for appellant?
- Is the case against appellant moot because the code section appellant was convicted of violating has been moved to
another code section?
- Does appellant have the right to further amend his brief?
For the following reasons, the Board's Order on Remand is affirmed.
FACTUAL BACKGROUND
On May 14, 1998, the Board filed a formal complaint charging the Appellant with several violations of the South Carolina
Board Regulation of Professions and Occupations Act, S.C. Code Ann. § 40-1-10 et seq. (Supp. 1997), the South Carolina
Chiropractic Practice Act, S.C. Code Ann. § 40-9-10 et seq. (1986 and Supp. 1997), and the Rules and Regulations of the
South Carolina Board of Chiropractic Examiners, 23A S.C. Code Ann. Regs. 25-1, et seq. (Supp. 1997). A hearing was the
held by the Board.
A Hearing Examiner with the Board held a hearing pursuant to an Order of the Board, concerning certain allegations
against the Appellant as contained in the Board's complaint dated May 14, 1998. The Hearing Examiner determined that:
- Appellant used a false statement in connection with the Board's licensing requirements by failing to inform the
Board of his arrest for willful failure to file a South Carolina income tax return on his renewal application;
- Appellant intentionally failed to inform the Board of his subsequent conviction for that offense, a Class C
misdemeanor;
- Appellant's false statement violated S.C. Code Ann. § 40-9-90(1)(1986) and constituted violations of the
Regulations of the Board as follows:
- unprofessional conduct in the practice of chiropractics (23A S.C. Code Ann. Regs. 25-5.A(4) (Supp. 1997));
- a failure to be guided by the highest standards of moral conduct required of the Board's Code of Ethics (23A S.C. Code
Ann. Regs. 25-6.A (Supp. 1997)).
- Appellant's conduct violated 23A S.C. Code Ann. Regs. 25-5.A(7) (Supp. 1997) in that Appellant had been convicted
of a misdemeanor;
- Appellant's conduct violated the code of ethics and certain Regulations of the Board in violation of S.C. Code Ann. §
40-9-90(6) (Supp. 1997).
The Hearing Examiner recommended that Appellant be suspended from the practice of chiropractics until completion of his
term of imprisonment, plus thirty days. Also, he recommended civil penalties totaling $3,000.00 for the violations and
ordered Appellant to pay the costs of investigation and prosecution of the matter in the amount of $777.00.
On November 5, 1998, a hearing to consider and act upon the report of the Hearing Examiner was held. The Board voted
to amend the report to require Appellant to take and pass the Special Purposes Exam for Chiropractic as a condition for
relicensing and adopted the amended report. On November 20, 1998, the Board's Final Order was issued, and an appeal
followed to the Division. Upon appeal, the Order of the Board was vacated and the matter was remanded to the Board.
This court found that the first hearing conducted by the Board was inherently flawed since board member(s) participated
both in the investigative process and in the adjudicatory process. The court held that such was an improper commingling of
prosecutorial and adjudicatory functions and was prohibited under the South Carolina Constitution. S.C. Const. Art. I, Sec.
22; Garris v. Governing Bd. of South Carolina Reinsurance Facility, 333 S.C. 432, 511 S.E.2d 48 (1998). This court stated
that the purpose of Art. I, Sec. 22 is to "ensure adjudications are conducted by impartial administrative bodies." Ross v.
Medical Univ. of South Carolina, 328 S.C. 51, 492 S.E.2d 62 (1997).
Subsequently, the Board referred the matter to its Hearing Examiner, the Hon. Edward L. Sessions, who held a hearing on
June 29, 2000. As the hearing began, the Appellant argued that the Board lacked jurisdiction to proceed with the
adjudicatory hearing because he had filed a motion with the Division (ALJD Docket No. 00-ALJ-11-0358-IJ) seeking
emergency relief which would prevent the present Board from hearing the case. Appellant's argument became moot when
the Hearing Examiner learned that the Hon. John D. Geathers of the Division had conducted an emergency hearing on the
request and had issued an Order on June 29, 2000 denying Appellant's request. The Order was brought to the Board's
attention and it proceeded with the hearing. Thereafter, the Board conducted a hearing on October 19, 2000. Appellant did
not appear. The Board issued its Order on Remand dated October 21, 2000 which was signed by its Vice Chairman, Dr.
Mitchell E. Falk. Appellant now appeals that Order.
Appellant is a licensed chiropractor in the State of South Carolina. He was engaged in the practice of chiropractics in
Darlington County, South Carolina. When the first Order of the Board was issued on November 20, 1998, Appellant's
license to practice chiropractics in South Carolina had lapsed.
On or about July 22, 1996, Appellant was served with an arrest warrant (# 073765) issued by authorities in Darlington
County, South Carolina. He was charged with one count of willful failure to file a state income tax return for the tax year
1995, in violation of S.C. Code Ann. § 12-54-40 (b)(6)(c)(1976). On or about July 23, 1996, Appellant was served with an
arrest warrant (# F-073763) issued by authorities in Darlington County, South Carolina. On the second warrant he was
charged with one count of willful failure to file a state income tax return for the tax year 1994, in violation of S.C. Code
Ann. § 12-54-40 (b)(6)(c)(1976). Appellant was arrested and was incarcerated. On or about July 23, 1996, he was released
from custody after posting a bond in the amount of $1,000,000. See Board's Exhibits C-2 and C-3, attached to the
Transcript of Proceedings before the full Board on August 6, 1998. On February 23, 1998, the Hon. Henry F. Floyd
convicted Appellant and sentenced the Appellant, based on the charges in the aforementioned warrants, to be confined to
the S.C. Department of Corrections/Darlington County Detention Center for a term of one year on each charge and to pay a
fine of $10,000.00 on each charge.
On or about May 13, 1997, Appellant filed with the Board an application to renew his license to practice chiropractics for
the fiscal year 1997-1998. He used the Board's standard form. See Board's Exhibit C-1 attached to the Transcript of
Proceedings before the full Board on August 6, 1998. (1) Appellant's address listed on the application was 1319 Myrtle
Street, Hartsville, South Carolina. His license number is listed as 1640.
On the reverse side of the application is a section which reads "COMPLETE THE FOLLOWING; IF ANY ANSWER IS
'YES', ATTACH A FULL WRITTEN EXPLANATION."
There were five questions, each having a box to check "YES" or "NO." The last question read as follows: "Since you last
renewed with this Board, have you been arrested, indicted or convicted for violation of any criminal law?" Appellant
checked the box marked "NO."
Under the five questions was the paragraph which stated "I have carefully read all questions on this application and have
answered them truthfully, accurately and completely. I hereby acknowledge that failure to answer these questions
truthfully, accurately and completely shall constitute cause for the initiation of disciplinary action against my South
Carolina license." It is uncontroverted that the appellant signed the application on May 5, 1997.
At no time did the Appellant amend the application or attempt to notify the Board of his arrest and subsequent conviction.
These facts were established by the Board through the introduction of documents at its hearing. This court finds that there
was substantial evidence in the record before the Board to find that the Appellant gave false information on the application
for renewal.
JURISDICTION AND STANDARD OF REVIEW
Jurisdiction on appeal is vested in the Administrative Law Judge Division pursuant to S.C. Code Ann. §§ 1-23-600 and 40-9-31 (Supp. 2000). The provisions of the South Carolina Administrative Procedures Act ("APA") govern an appeal from a
final order of the Board. Under the APA, the Division "shall not substitute its judgment for that of the agency as to the
weight of the evidence on questions of fact." S.C. Code Ann. § 1-23-380 (A)(6) (Supp. 2000). However, the
Administrative Law Judge may reverse or modify the decision of the Board if substantial rights of the appellant have been
prejudiced because the administrative findings or decision are clearly erroneous in view of the reliable, probative and
substantial evidence on the whole record, are arbitrary or capricious, are in violation of constitutional or statutory
provisions, are made upon unlawful procedure, or are affected by other error of law. S.C. Code Ann. § 1-23-380(A)(6)(a),
(c), and (d) (Supp. 2000). See Lark v. Bi-Lo, 276 S.C. 130, 276 S.E.2d 304 (1981).
Substantial evidence is that evidence which, in considering the record as a whole, would allow reasonable minds to reach
the conclusion that the administrative agency reached. Jennings v. Chambers Development Co., 335 S.C. 249, 516 S.E.2d
453 (1999). The possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative
agency's finding from being supported by substantial evidence. Id. Where there is a conflict in the evidence, the agency's
findings of fact are conclusive. Id.; see Harbin v. Owens-Corning Fiberglas, 316 S.C. 423, 450 S.E.2d 112 (Ct. App. 1994).
This court cannot substitute its judgment for that of the Board upon a question as to which there is room for a difference of
intelligent opinion. Chemical Leamen Tank Lines v. S.C. Pub. Serv. Comm'n, 258 S.C. 518, 189 S.E.2d 296 (1972).
DISCUSSION
By statute, the results of all investigations by the Department of Labor, Licensing and Regulation must be presented to the
relevant board. In the present case, the relevant board is the Board of Chiropractic Examiners. The results of all
investigations are reported to the Board whether the agency feels the underlying complaints are founded or not. If the
results of the investigation appear to establish violations of the relevant practice act, the Board may initiate disciplinary
proceedings. S.C. Code Ann. § 40-1-90(a) (Supp. 2000).
Appellant's Arguments
- Did the Board err when, pursuant to the Order of Remand it chose to reappoint a hearing officer and retry the matter
against appellant?
Case Prior to Remand
Prior to the remand in this case, an Investigative Review Committee reviewed the alleged conduct of Appellant prior to the
issuance of the formal complaint. A formal complaint was issued and a disciplinary proceeding was held. The evidentiary
hearing on the formal complaint was held before Dr. Henry W. Hulteen. Dr. Hulteen issued his report and recommended
suspension of Appellant's license until completion of his sentence for the conviction of a Class C misdemeanor, plus thirty
days. The matter then went before the full Board for oral argument and final order. In this case, eight board members were
present at the final order hearing. The IRC board member, Dr. Johnson, was present and did not recuse himself on the
record from voting or deliberating in executive session. Dr. Hulteen did recuse himself from voting but did not recuse
himself from the deliberations. As a result, a Final Order was issued adopting the recommendations of Dr. Hulteen and
amending the recommendation requiring Appellant to take and pass the SPEC (Special Purposes Examination for
Chiropractic) as a condition of reinstatement.
In the first hearing by the Board, the evidence of record established that the same person, Dr. Johnson, the IRC Board
representative, carried out both prosecutorial and adjudicatory functions. The commingling was seen in the activities of the
IRC and the activities of the Board in adjudicating the suspension of Appellant's license. Dr. Johnson was the same board
member who reviewed evidence leading to the decision to seek a formal complaint and also voted at the Board's November
5, 1998 hearing which resulted in the November 20, 1998, order suspending Appellant's license. The evidence also
established that Dr. Hulteen served solely in the function of an adjudicator. Dr. Hulteen first served as the Hearing
Examiner at the evidentiary hearing held on August 6, 1998 and later as Chair for the Final Order hearing on November 5,
1998. It is clear from Dr. Hulteen's Report from the August 6, 1998 evidentiary hearing, that he thought the proper
disciplinary action was suspension. While Dr. Hulteen did recuse himself from voting on the matter in executive session,
his failure to recuse himself from the Board's deliberations prior to the vote of the Board raised concerns with this court
whether the adjudicative process was impartial. This court noted that the better course would have been for Dr. Hulteen to
recuse himself from both the deliberations and the voting to avoid any appearance of impropriety.
In an administrative dispute, a party shall not be subject to the same person for both prosecution and adjudication. S.C.
Const. Art. I, Sec. 22. A party is subject to the same person for prosecution and adjudication if an agency official first
investigates the alleged wrongdoing and then that same official acts as a judge in determining whether the wrongdoing has
been proved. Ross v. Medical Univ. of South Carolina, 328 S.C. 51, 70, 492 S.E.2d 62, 72 (1997). Partiality exists where
an adjudicator has acquired ex parte information about a matter through prior investigation or has developed a "will to win"
by prior involvement in the case. Id. Article I, Section 22 is further violated by situations where an "inherently flawed
structure of the investigative and prosecutorial processes . . . place[s] future adjudicators in situations where they [have] the
opportunity to form . . . premature opinions." Garris v. Governing Board of S.C. Reinsurance Facility, 333 S.C. 332, 511
S.E.2d 48 (1998).
The South Carolina Supreme Court, in interpreting Article I, Sec. 22 of the South Carolina Constitution, has placed an
absolute prohibition on the commingling of prosecutorial and adjudicative functions. In Garris, supra, the Court noted that,
"under a realistic appraisal of psychological tendencies and human weakness," board members who participate in the
investigation or prosecution of a case may not participate as adjudicators in any subsequent disciplinary hearing without
violating Article I, Sec. 22. "Members who participate in the investigation of a case must distance themselves from the
adjudicatory process and should refrain from even discussing that case with future adjudicators." Garris, 511 S.E.2d at 55.
Even if such a violation is found, however, the question remains whether the commingling amounts to more than a
harmless error. See, e.g., Ross v. Medical Univ. of South Carolina, 328 S.C. 51, 492 S.E.2d 62 (1997) ("while we do not
condone Vice-President Newberry's participation in this dual capacity, we find the error harmless.")
Thus, two elements must be established for Appellant to prevail on this issue. First, the evidence must demonstrate an
improper commingling of prosecutorial and adjudicatory functions. Second, the commingling must be more than a
harmless error.
Under the facts of the first case, the court found that it was clear that an improper commingling of prosecutorial and
adjudicatory functions occurred when a board member who had been exposed to the prosecutor's evidence prior to any
adjudicatory hearing for Appellant was then allowed to sit, participate and vote at the adjudicatory hearing. Furthermore,
the same Board member who authored the initial disciplinary recommendation also sat and deliberated as Chair with the
other Board members who then ratified the initial recommendation with additional conditions. Thus, the procedure for the
prosecution of Appellant's case created a violation of Art. I, Sec. 22 in that a Board member who served as an adjudicator
was placed in a situation "where [he] had the opportunity to form premature opinions." Garris, 511 S.E.2d at 48.
This court also found that the structure of the first board hearing was so inherently flawed that it was not subject to
harmless error analysis. Garris, 511 S.E.2d at 56 (citing Arizona v. Fulminate, 499 U.S. 279, 307-09, 111 S.Ct. 1246,
1263-64, 113 L.E.2d 302, 329-31 (1991) (dividing constitutional errors into "trial error" and "structural defects," with the
later defying analysis by harmless error standards because they affect the framework within which a trial proceeds, rather
than simply an error in the trial itself). Thus, this court held that the Appellant was denied procedural due process in the
adjudication of his case, and the Board's decision was vacated.
Hearing After Remand
Upon remand by this court, the Board met and appointed a new member of the Board, Dr. Edward L. Sessions, to serve as
the Hearing Examiner, take the evidence and make a report to the Board. Appellant argues that Dr. Hulteen participated in
discussions at the Board meeting and that he tainted the Board by interpreting this court's Order for the Board. However,
the record does not support Appellant's argument. In fact, each member of the Board was provided a copy of the Order and
had the opportunity to form his own opinion as to whom would be appointed as a hearing officer. There is no evidence that
Dr. Hulteen tainted the Board during their deliberations prior to appointing the Hearing Examiner. Further, neither Dr.
Hulteen nor Dr. Sessions participated in the hearing before the full Board.
The statutes which mandate hearing procedures applicable to Board actions were followed. The new hearing officer was
appointed pursuant to authority in S.C. Code Ann. §§ 40-9-30 and 31 (Supp. 2000). Dr. Sessions had no previous
connection to the case. This court concludes there was no evidence of any commingling of prosecutorial and adjudicatory
functions, and that the Appellant was provided due process in the proceeding before the Board after the remand.
- Did the hearing examiner correctly refuse to allow an unlicensed individual to act as counsel for appellant at the
evidentiary hearing?
On several occasions during the hearing the Appellant attempted to have Mark Moyers, a doctor of chiropractics, represent
him. His requests were denied by the hearing examiner. Also, at the hearing before this court on July 17, 2001, Mr.
Moyers accompanied the Appellant to the hearing. Appellant requested that Mr. Moyers be allowed to represent him at the
appellate hearing pursuant to ALJD Rule 33(A), arguing that Mr. Moyers was his "authorized representative."
This court denied the request to have Mr. Moyers represent the Appellant at the appellate hearing on the grounds that Mr.
Moyers was not authorized to do so pursuant to ALJD Rule 9(A) and the South Carolina Supreme Court's decision in the
case of In re Unauthorized Practice of Law Rules, 309 S.C. 304, 422 S.E.2d 123 (1992). In the Unauthorized Practice of
Law Rules case, the South Carolina Supreme Court held that state agencies may, by regulation, authorize persons not
licensed to practice law in South Carolina to appear and represent clients before the agency. The Administrative Law Judge
Division has enacted ALJD Rule 9(A), which states that "[a]ny party may be represented by an attorney admitted to
practice, either permanently or pro hac vice, or as otherwise authorized by law. In tax related cases, any party may be
represented by a certified public accountant. No one shall be permitted to represent a party where such representation
would constitute the unauthorized practice of law." (Emphasis added). Thus, the only persons who may represent
individual clients before the Division are members of the South Carolina Bar, attorneys admitted pro hac vice, and certified
public accountants (in tax matters only). Mr. Moyers, who is not an attorney, was therefore not allowed to represent the
Appellant before the Division.
For the same reason, Mr. Moyers was not authorized to represent the Appellant at the evidentiary hearing. The Department
has enacted no regulations which would allow a layperson to represent a client before the Board. Thus, the Board's denial
of Appellant's request was proper. This court concludes that this argument by the Appellant is lacking in merit and legal
support.
- Is the case against Appellant moot because the Code section Appellant was convicted of violating has been moved to
another code section?
Appellant asserts that the denial by the Board of the renewal of his license to practice chiropractics is moot because the
code section under which he was convicted has been repealed. As discussed above, Appellant was convicted for failing to
file income tax returns with the State of South Carolina for the calendar years 1994 and 1995, in violation of S.C. Code
Ann. § 12-54-40 (b)(6)(c)(1976).
Act 114 was signed by the Governor of the State of South Carolina on June 30, 1999. The effect of the act was to repeal
S.C. Code Ann. § 12-54-40 and replace it with S.C. Code Ann. § 12-54-44. The criminal penalties provided for in § 12-54-40 for failing to file income tax returns were placed in the new code section. They were never deleted from the statutes.
The Appellant argues that a savings clause was required. However, the same penalties provided for in § 12-54-40 are now
embodied in § 12-54-44. S.C. Code Ann. §§ 12-54-43 and 12-54-44 were added by Act 114 to Article 1, Chapter 54, Title
12 of the 1976 Code. These sections respectively provided for civil penalties and criminal penalties, including penalties for
the failure to file income tax returns with the Department of Revenue.
The term savings clause is defined as "a statutory provision exempting from coverage something that would otherwise be
included." Black's Law Dictionary at 1344 (7th ed.1999). A savings clause is generally used in a repealing act, such as
Act 114, if needed to preserve rights and claims that would otherwise be lost. Such a clause was unnecessary in Act 114
since the penalties provided for in the repealed code provisions were included in new provisions in the act. The crimes of
which the Appellant was convicted are still "on the books" in South Carolina. However, even if they had been repealed
outright by Act 114, no savings clause would have been needed because the Appellant had already pleaded guilty to the two
crimes and the convictions were a matter of record.
The court therefore finds and concludes that this argument by the Appellant is without merit.
4. Right of Appellant to amend his brief.
In his brief filed with the court, Appellant states that he is reserving his right to amend his brief to further perfect the appeal
process. Further, he posits that he "believes that the entire matter should be discussed before the Honorable Judge Marvin
Kittrell and all matters of fact should be allowed and not excluded due the fact that Appellant is not an attorney and must
work a full-time position in his profession to provide for his family in addition to perfecting the case for appeal."
Appellate proceedings before the Division are governed by the Division's Rules of Procedure. ALJD Rule 37(A) provides
that the appellant shall file its brief within fifteen days after receipt of the Record on Appeal; the respondent shall file its
brief within fifteen days thereafter; and the appellant may file a reply brief within ten days thereafter. The Rules of the
Division simply do not provide for the unlimited right of parties to amend their briefs once submitted. Finality and judicial
economy require that matters must at some point come before the court for final disposition. Although the rules of the
Division are flexible, only the briefs provided for in the rules are allowed to be filed with this court in appellate proceedings
and litigants do not have the right to reserve time to amend their briefs. Furthermore, Appellant's pro se status does not
excuse him from full compliance with the Rules of Procedure for the Division. See ALJD Rule 9(A) ("A party proceeding
without legal representation shall remain fully responsible for compliance with these Rules and the Administrative
Procedures Act.").
The Court further notes that, pursuant to the Order Governing Procedure issued in this case, Appellant's brief was
originally due on January 18, 2001. Appellant moved for and was granted a ninety-day extension of time in which to file
his brief by Order dated February 6, 2001. The brief was therefore due on April 19, 2001. Appellant failed to file his brief
and instead filed a motion for an additional ninety days in which to file the brief. This motion was denied on April 25,
2001, and Appellant was ordered to file his brief on or before May 7, 2001. Under the circumstances of this case,
Appellant was given more than ample time in which to perfect the issues on appeal. I find and conclude that this argument
is without merit.
CONCLUSION
For all the foregoing reasons, the Final Order on Remand of the Board dated October 21, 2000 is hereby AFFIRMED.
AND IT IS SO ORDERED.
__________________________________
MARVIN F. KITTRELL
Chief Administrative Law Judge
October 30, 2001
Columbia, South Carolina
1. This transcript is contained in Appellant's previous appeal file with the Division, Docket # 98-ALJ-11-0720-AP.
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