ORDERS:
ORDER
STATEMENT OF THE CASE
Pursuant to S.C. Code Ann. §§ 40-33-931 (2001) and 1-23-380(B) (Supp. 2000), Appellant Thomas P. Smarsh appeals the
South Carolina Board of Nursing's (Board) Final Order of June 14, 2001, which revoked his license to practice nursing.
The Board found that Appellant committed misconduct in violation of S.C. Code Ann. § 40-33-935(g) (2001) and S.C.
Code Ann. Regs. 91-19(c)(2)-(3) (Supp. 2000) by entering into inappropriate relationships with three minors under the
custody of the Department of Juvenile Justice (DJJ). Specifically, the Board found that Appellant, in the course of those
relationships, gave candy to the minors, took photographs of the minors, administered prescription drugs to two of the
minors without a physician's order, allowed one of the minors to distribute prescription drugs to other juveniles at DJJ,
offered one of the minors alcoholic beverages, allowed two of the minors-both under sixteen years old and without valid
driver's licenses-to drive his car and to shoot his firearms, and engaged an inappropriate private, personal, and possibly
sexual relationship with each of the three minors that, at the very least, included inappropriate sexual discussions and
inappropriate physical contact. Pursuant to S.C. Code Ann. Regs. 91-19(h)-(l) (1976 & Supp. 2000), the Board considered
the Hearing Panel's report of May 1, 2001 in issuing its Final Order.
Upon careful consideration of the record, the briefs filed, (1) and the applicable law, I find that the Board's revocation of
Appellant's license to practice nursing as a registered nurse must be affirmed.
STANDARD OF REVIEW
The provisions of the South Carolina Administrative Procedures Act (APA) govern an appeal from an action of the Board.
Lark v. Bi-Lo, Inc., 276 S.C. 130, 276 S.E.2d 304 (1981). Under the APA, this tribunal "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). This tribunal may, however, reverse or modify a decision if substantial rights of an appellant have been prejudiced
because the administrative findings or decisions are affected by an error of law, "clearly erroneous in view of the reliable,
probative and substantial evidence on the whole record," or "arbitrary and capricious." Id. Here, Appellant argues that the
Board's decision is not supported by reliable, probative, and substantial evidence.
Substantial evidence is that evidence which, in considering the record as a whole, would allow reasonable minds to reach
the conclusion of the administrative agency. E.g., Jennings v. Chambers Development Co., 335 S.C. 249, 516 S.E.2d 453
(Ct. App. 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 administrative agency's findings of fact are conclusive. Id. This tribunal cannot substitute its judgment for
that of an agency upon a question as to which there is room for a difference of intelligent opinion. E.g., Chemical Leamen
Tank Lines v. S.C. Pub. Serv. Comm'n, 258 S.C. 518, 189 S.E.2d 296 (1972). While a decision of an administrative
agency will normally be upheld, the findings may "not be based upon surmise, conjecture, or speculation, but must be
founded on evidence of sufficient substance to afford a reasonable basis for it." Mullinax v. Winn-Dixie Stores, Inc., 318
S.C. 431, 458 S.E.2d 76 (Ct. App. 1995).
The burden is on the Appellant to show convincingly that the Board's order is without sufficient evidentiary support. See
Hamm v. Am. Tel. & Tel. Co., 315 S.C. 119, 432 S.E.2d 454 (1993); Hamm v. Pub. Serv. Comm'n of S. C., 310 S.C. 13,
425 S.E.2d 28 (1992).
ISSUE ON APPEAL
I. Is the Board's decision to revoke Appellant's nursing license clearly erroneous in view of the reliable, probative, and
substantial evidence in the record because the Board admitted hearsay testimony and unauthenticated documents into
evidence at the hearing and relied upon such evidence in reaching its final decision?
ANALYSIS
The sole ground upon which Appellant bases this appeal is the contention that the Board's decision to revoke his license
was based upon improperly admitted hearsay evidence. However, because Appellant did not object to the admissibility of
this evidence at the hearing, he waived his right to make such an objection, and, moreover, failed to preserve this issue for
appeal.
It is a fundamental principle of appellate practice that an issue must be properly preserved at the trial level before it can be
heard on appeal. The South Carolina Court of Appeals expounded upon this basic requirement for appellate review in a
recent case:
Objections not raised in the trial court cannot be relied on in the appellate court. The duty is on the litigant to make a
timely objection in order to preserve the right of review. A contemporaneous objection is required to properly preserve an
error for appellate review. The failure to make an objection at the time evidence is offered constitutes a waiver of the right
to object.
Doe v. S.B.M., 327 S.C. 352, 356, 488 S.E.2d 878, 880 (Ct. App. 1997) (citations omitted). (2) In the case at hand,
Appellant did not object to the introduction of hearsay testimony and unauthenticated documents into evidence at his
hearing; and he concedes as much. (Br. of Appellant at 3-4.) Appellant has, therefore, waived his right to object to such
evidence in this appeal.
Further, the consequences of Appellant's failure to object to hearsay evidence at his hearing are in no way mitigated by the
fact that he represented himself at the hearing. Appellant was fully informed of his right to have the assistance of counsel
at the hearing (R. at 16, 136, 211, 213), and he knowingly waived that right. (R. at 16, 136.) Given this knowing waiver of
his right to counsel, the hearing panel was not, and this tribunal is not, required to make exceptions for Appellant's lack of
legal sophistication. See Goodson v. Am. Bankers Ins. Co. of Fla., 295 S.C. 400, 403, 368 S.E.2d 687, 689 (Ct. App. 1988)
("Lack of familiarity with legal proceedings is unacceptable and the court will not hold a layman to any lesser standard than
is applied to an attorney."); McCall v. A-T-O, Inc., 276 S.C. 143, 146, 276 S.E.2d 529, 530 (1981) ("This Court has never
held a layman to a lesser standard than attorneys."); see also Doe v. S.B.M., 327 S.C. 352, 488 S.E.2d 878 (Ct. App. 1997)
(holding that a pro se litigant failed to preserve the issue of whether certain evidence should have been admitted at a
damages hearing by failing to object to the evidence at the hearing). As a consequence of representing himself at the
hearing, Appellant bore full responsibility for the inadequacy of that representation, including any adverse consequences
resulting from his unfamiliarity with legal proceedings.
Finally, this tribunal's holding that Appellant's failure to object to hearsay evidence at the hearing precludes him from
raising that objection on appeal should not be taken to suggest that Appellant's argument is otherwise sound and that the
Board's decision rests upon insufficient evidence. Indeed, while much of the evidence now objected to by Appellant is
technically hearsay, his failure to object to that evidence at the hearing rendered the evidence competent. South Carolina
courts have consistently held that evidence admitted without objection becomes competent and may be properly considered
by the finder of fact. See Wayne Smith Const. Co., Inc. v. Wolman, Duberstein, & Thompson, 294 S.C. 140, 363 S.E.2d
115 (Ct. App. 1987); Cantrell v. Carruth, 250 S.C. 415, 158 S.E.2d 208 (1967); Wessinger v. Duncan, 113 S.C. 205, 102
S.E. 6 (1920); Minton v. Pickens, 24 S.C. 592 (1886). This rule is a general one, grounded in judicial prudence: "[M]uch
evidence such as reliable affidavits or copies of writings, though inadmissible under the technical exclusionary rules, is
trustworthy and valuable. In that case, absent an objection, the trial judge would be unjustified in excluding the evidence."
McCormick on Evidence § 55, at 247-48 (John W. Strong ed., 5th ed. 1999). Accordingly, the Board's decision cannot be
said to rest upon incompetent evidence.
As noted above, the sole issue upon which Appellant brought this appeal was not properly preserved for appellate review.
Consequently, his appeal must fail and the Board's final order revoking Appellant's license to practice as a registered nurse
must be affirmed.
ORDER
IT IS THEREFORE ORDERED that the South Carolina Board of Nursing's Final Order of June 14, 2001 in this matter
is AFFIRMED.
AND IT IS SO ORDERED.
______________________________
JOHN D. GEATHERS
Administrative Law Judge
Post Office Box 11667
Columbia, South Carolina 29211-1667
December 7, 2001
Columbia, South Carolina
1. Pursuant to the discretion granted under ALJD Rule 39, this tribunal determined that it was not necessary to hear oral
arguments in this appeal.
2. This requirement is not new. Writing in response to an objection to the introduction of hearsay statements at trial made
for the first time on appeal, Justice Jonathan Jasper Wright noted, in 1873, that "[a]s [the statements] were introduced
without objection, any consideration of their mere competency is precluded." Means v. Feaster, 4 S.C. 249, 256 (1873). |
